okf.kT; vkSj m|ksx ea=ky;
ladYi
ubZ fnYyh] 9 vDrwcj] 2013
dkñvkñ 2301-—ued ds fofuekZ.k ds fy, iês ij nh xbZ
ued vk;qDr ds iz'kklfud fu;a=.k okyh dsanz ljdkj dh Hkwfe ds
iês ds uohuhdj.k laca/kh uhfr ij fopkj fd;k x;k rFkk ljdkj ds
ladYi lañ 18¼4½59&ued ¼Hkkx&VIII½] fnukad 7@12@1961 esa
vkaf'kd la'kks/ku djrs gq, rFkk ljdkj ds ladYi lañ
16¼23½@63&ued] fnukad 19@12@1969 ds rgr bls vkSj Li"V
djrs gq,] jk"Vªifr fuEufyf[kr dk vuqeksnu iznku djrs g®%—
¼d½ dsanz ljdkj dh Hkwfe fufonk vkeaf=r djds 20 o"kks±
dh vof/k ds fy, ued fofuekZ.k gsrq iês ij nh tk,xhA
¼[k½ iês dk uohuhdj.k ug… fd;k tk,xkA ued fofuekZ.k
ds fy, Hkwfe iznku djus gsrq ubZ fufonk vkeaf=r dh
tk,xhA ekStwnk iês ds lekIr gksus ij orZeku iêsnkj
u, fufonkdrkZvksa ds lkFk fufonk esa Hkkx ys ldrk gSA
[lañ 04014@1@2012&ued]
lathouh rkEg.ks] mi lfpo
MINISTRY OF COMMERCE AND INDUSTRY
RESOLUTION
New Delhi, the 9th October, 2013
S.O. 2301.—The policy on the renewal of leases of
Central Government land under the administrative control
of Salt Commissioner leased out for manufacture of salt
was considered and the President, in partial modification
of the Government Resolution No. 18(4)/59-Salt (Pt. VIII)
dated 7th December, 1961 and further clarified under
Government Resolution No. 16(23)/63-Salt dated 19th
December, 1969, is pleased to approve that:—
(a)
Central Government land will be leased out for
salt manufacture for a period of 20 years by
invitation of tender.
(b)
No renewal of lease will be done. Fresh tender
for the assignment of land for salt manufacture
will be called. The present lessee on expiry of
the existing lease may participate along with
fresh aspirants.
[No. 04014/1/2012-Salt]
SANJIVANI TAMHANE, Dy. Secy.
jftLVªh la- Mh- ,y- (,u) 04@0007@2003µ05
REGD. NO. D. L. (N) 04/0007/2003—05
izkf/dkj ls izdkf'kr
PUBLISHED BY AUTHORITY
lkIrkfgd
WEEKLY
la- 43]
ubZ fnYyh, vDrwcj 20—vDrwcj 26 2013] 'kfuokj@vkf'ou 28—dk£rd 4] 1935
No. 43]
NEW DELHI, OCTOBER 20—OCTOBER 26, 2013, SATURDAY/ASVINA 28—KARTIKA 4, 1935
Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g i`Fkd ladyu ds :i esa j[kk tk lds
Separate Paging is given to this Part in order that it may be filed as a separate compilation
Hkkx II—[k.M 3—mi&[k.M (ii)
PART II—Section 3—Sub-section (ii)
Hkkjr ljdkj ds ea=kky;ksa (j{kk ea=kky; dks NksM+dj) }kjk tkjh fd, x, lkafof/d vkns'k vkSj vf/lwpuk,a
Statutory Orders and Notifications Issued by the Ministries of the Government of India
(Other than the Ministry of Defence)
4387 GI/2013
(6115)
6116
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
miHkksDrk ekeys] [kk| vkSj lkoZtfud forj.k ea=ky;
¼miHkksDrk ekeys foHkkx½
¼Hkkjrh; ekud C;wjks½
ubZ fnYyh] 15 vDrwcj] 2013
dkñvkñ 2302-—Hkkjrh; ekud C;wjks fu;e] 1987 ds fu;e 7 ds mifu;e ¼1½ ds [kaM ¼[k½ ds vuqlj.k esa Hkkjrh; ekud C;wjks
,rn~}kjk vf/klwfpr djrk gS fd ftu Hkkjrh; ekudksa ds fooj.k uhps vuqlwph esa fn, x, g® os LFkkfir gks x, g®%&
vuqlwph
Øe
LFkkfir Hkkjrh; ekud¼dksa½ dh la[;k] o"kZ vkSj
u;s Hkkjrh; ekud }kjk
LFkkfir frfFk
la[;k
'kh"kZd
vfrØfer Hkkjrh; ekud
vFkok ekudksa] ;fn dksbZ gks]
dh la[;k vkSj o"kZ
1
IS 1515% 2013
IS 1515%1988
31 vxLr] 2013
e/kqeD[kh isfVdk & fof'kf"V ¼pkSFkk iqujh{k.k½
2
IS 1735 (Part 2): 2013
e/kqeD[kh isfVdk dk LV®M & fof'kf"V
IS 1735 (Part 2) % 1978
31 vxLr] 2013
Hkkx 2 fLFkj izdkj ¼nwljk iqujh{k.k½
3
IS 14133: 2013
'kgn fudkyus okys O;fDr dk fdV & fof'kf"V
IS 14133 % 1994
31 vxLr] 2013
¼igyk iqujh{k.k½
4
IS 5960 ¼Hkkx 11½% 2013
IS 5960 ¼Hkkx 11½% 1988
30 flracj] 2013
ekal ,oa ekal mRikn & ijh{k.k i)fr
Hkkx 11 Xywdksuks&MsYVk&ysDVksu dh ek=k Kkkr
djuk ¼igyk iqujh{k.k½
bu ekudksa dh izfr;ka Hkkjrh; ekud C;wjks] ekud Hkou] 9] cgknqj 'kkg tQj ekxZ] ubZ fnYyh&110002] {ks=h; dk;kZy;ksa % ubZ fnYyh]
dksydkrk] psUubZ] eqEcbZ] p.Mhx<+ rFkk 'kk[kk dk;ky;ksa % vgenkckn] caxykSj] Hkksiky] Hkqous'oj] dks;Ecrwj] xqokgkVh] gSnjkckn] t;iqj]
dkuiqj] ukxiqj] iVuk] iw.ks rFkk dksfp esa fcØh gsrq miyC/k g®A
[lanHkZ ,Q,Mh@th&128]
dqekj vfuy] oSKkkfud ^,Q* ,oa izeq[k ¼[kk| ,oa d`f"k½
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION
(Department of Consumer Affairs)
(BUREAU OF INDIAN STANDARDS)
New Delhi, the 15th October, 2013
S.O. 2302.—In pursuance of Clause (b) of sub-rule (1) of Rule 7 of the Bureau of Indian Standards Rules, 1987, the
Bureau of Indian Standards hereby notifies that the Indian Standards, particulars of which are given in the Schedule hereto
annexed have been established on the date indicated against each:
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6117
SCHEDULE
Sl. No.
No. and Year of the Indian Standard
No. and Year of Indian
Date of
Standards, if any, Superseded
Establishment
by the New Indian Standard
1.
IS 1515 : 2013
Beehives-Specification (Fourth
IS 1515 :1998
31 August, 2013
revision)
2.
IS 1735 (Part 2): 2013
Beehives stand-Specification (Part 2
IS 1735 (Part 2) : 1978
31 August, 2013
Fixed type (Second revision)
3.
IS 14133 : 2013
Beekeeper's Kit-Specification (First
IS 14133 : 1994
31 August, 2013
revision)
4.
IS 5960 (Part 11) : 2013
Meat and Meat Products- Methods of
Test Part 11 Determination of
IS 5960 (Part 11) : 1988
30 September, 1013
glucono-delta-lactone content (First
revision)
Copy of these standards are available for sale with the Bureau of Indian Standards, Manak Bhavan, 9 Bahadur Shah
Zafar Marg, New Delhi-110002 and Regional Offices : New Delhi, Kolkata, Chandigarh, Chennai, Mumbai, and also Branch
Offices: Ahemdabad, Bangalore, Bhopal, Bhubhneshwar, Coimbatore, Guwahati, Hyderabad, Jaipur, Kanpur, Nagpur, Patna,
Pune and Kochi.
[Ref. FAD/G-128]
KUMAR ANIL, Scientist 'F' and Head (Food & Agri.)
Je ,oa jkstxkj ea=ky;
ubZ fnYyh] 23 flrEcj] 2013
dkñvkñ 2303-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ bafM;u
vk;y dkiksZjs'ku fyñ] fnYyh ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky; uañ 1] fnYyh ds
iapkV ¼lanHkZ la[;k 50] 55] 56@2013½ izdkf'kr djrh gS tks dsUnzh;
ljdkj dks 20@9@2013 dks izkIr gqvk FkkA
[lañ ,y&30011@90@2002&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
MINISTRY OF LABOUR AND EMPLOYMENT
New Delhi, the 23rd September, 2013
S.O. 2303.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 50, 55,
56/2013) of the Central Government Industrial Tribunal/
Labour Court No. 1, Delhi now as shown in the Annexure
in the Industrial Dispute between the employers in relation
to the Management of M/s. Indian Oil Corporation Ltd.
Delhi and their workman, which was received by the Central
Government on 20/9/2013.
[No. L-30011/90/2002-IR(M)]
JOHN TOPNO, Under Secy.
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1, KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 55/2013
Shri Hari Narayan,
S/o Late Shri Brijpal Verma,
Through New Delhi General Mazdoor Union,
R/o B-89, Gulmohar Park,
New Delhi-110 049
.....Workman
Versus
The Chairman and Managing Director,
Indian Oil Corporation Ltd.
Scope Complex, Core 2,
Lodhi Road,
New Delhi
....Management
AWARD
Indian Oil Corporation Ltd. (hereinafter referred to
as the Corporation) operates seven refineries located at
Digboi, Guwahati, Barauni, Gujarat, Haldia, Mathura and
Panipat. Corporation carries out distribution of various
essential petroleum products to general public, industries,
railways and defence services through a vast marketing
network and pipelines situated at various locations in the
6118
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
country. To ensure production and supply of petroleum
products, the Corporation employs various personnel.
Recruitment is made by the Corporation according to
recruitment rules applicable to it.
2. Corporation awarded some work to a contractor,
who employed certain persons to carry out the job so
awarded to him. Persons employed by the contractor
preferred a writ petition before High Court of Delhi bearing
CWP No. 7377 of 99, seeking their regularization in services
of the Corporation. The said writ petition was dismissed
vide order dated 13.09.2011. Later patent appeal was also
dismissed vide order dated 19.10.2001. Thereafter, 18
persons approached the Conciliation Officer, seeking
regularization of their job with the Corporation. When
conciliation proceedings ended into a failure, the appropriate
Government referred the dispute to this Tribunal for
adjudication vide order No. L-3011/90/2002-IR(M),
New Delhi dated 17.03.2003 with the following terms:
"Whether the action of the management of Refinery
Division, HQ, IOCL, New Delhi is not regularizing
the services of 18 workmen (as per the list attached)
from the date of initial appointment is just, fair and
legal? If not, what relief the 18 workmen are entitled
to and from which date?"
3. Claim statement was filed on behalf of the claimant
wherein it was asserted that they were engaged by the
Corporation on different dates since Marcy 1980 till October,
1989. They rendered continuous service to the Corporation.
They claim for reinstatement in the service of the
Corporation since the date of their initial appointment(s).
Their claim was resisted in the written statement, wherein
the Corporation pleads that there was no relationship of
employer and employee between the parties and as such,
claimants are not entitled to any relief of regularization of
their service.
4. During the course of adjudication of the said
dispute, present complaint has been filed under section
33A of the Industrial Disputes Act, 1947 (in short the Act)
alleging therein that services of the claimant were dispensed
with by the Corporation with effect from 31.01.2006.
Complaint sought indulgence of this Tribunal for his
reinstatement in the service since the date of his
termination, effected by the management. In the written
statement, Corporation takes the very plea taken in the
industrial dispute and agitates that claimant was not their
employee. It has been asserted that there was no action on
the part of the Corporation to terminate services of the
claimant. The Corporation presents that the complaint,
under reference, may be dismissed, being devoid of merits.
5. On pleadings of the parties following issues were
settled:
(1)
Whether claimant is a workman concerned in
the dispute referred for adjudication on
17.03.2003 to this Tribunal?
(2)
Whether management violated provisions of
section 33 of the Industrial Disputes Act, 1947?
(3)
Whether claimant is entitled to relief of
reinstatement in service?
6. No evidence was adduced on behalf of the
claimant, despite grant of more than reasonable
opportunities. When claimant failed to adduce evidence,
the Corporation opted not to adduce any evidence in the
matter.
7. Arguments were heard at the bar. Shri B.K. Prasad,
authorized representative, raised submission on behalf of
the claimant. Shri Vinay Sabharwal, authorized
representative, presented facts on behalf of the Corporation.
I have given my careful considerations to the arguments
advanced at the bar and cautiously perused the record.
My findings on issues involved in the controversy, are as
follows:—
Issue No. 1
8. For the purpose of section 33 of the Act, the
workman should not only be a workman within the meaning
of section 2(s) of the Act but should also be ‘concerned in
the dispute pending before the Tribunal.’ Workman
‘concerned in the industrial dispute’ obviously constitute
group which might be less comprehensive in its scope
than all the workmen employed in that industry or even in
one establishment of that industry. The word ‘concerned,
means ‘interested, engaged, having a connection with’ or
interested/involved'. In order to substantiate the claim of
contravention of section 33, the workman has to show that
he was 'concerned' with the pending dispute in any of the
manners envisaged by the expression. It is necessary for
the workman who wants to come within the category of
workman concerned in such dispute to prove that he is
interested in or has connection with the dispute already
pending for determination.
9. In the dispute registered as ID No. 32/2003,
appropriate Government forwarded an issue relating to
regularization of services of 18 workmen with Indian Oil
Corporation Ltd. List of those 18 workmen was annexed
with schedule of reference. Name of the claimant appears
at Sl. No. 12 of the said list. Thus, it is evident that the
claimant was one of the workmen, who had raised the
dispute, which was pending adjudication when his services
were allegedly dispensed with. Taking cognizance of these
facts, it is concluded that the claimant was concerned in
the dispute pending adjudication before this Tribunal. The
issue is, therefore, answered in favour of the claimant and
against the Corporation.
Issue No. 2
10. Section 33 of the Act bars alteration in conditions
of service "prejudicial" to the workman concerned in the
dispute and punishment of discharge or dismissal when
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6119
either is connected with pendent lite industrial dispute "save
with the permission of the authorities before which the
proceedings is pending" or where the discharge or
dismissal is for any misconduct not connected with the
pendent lite industrial dispute without the "approval of
such authority". Prohibition contained in Section 33 of the
Act is two fold. On one hand, they are designed to protect
the workman concerned during the course of industrial
conciliation, arbitration and adjudication, against
employers' harassment and victimization, on account of
their having raised the industrial dispute or their continuing
the pending proceedings and on the other, they seek to
maintain status quo by prescribing management conduct
which may give rise to "fresh dispute" which further
exacerbate the already strained relations between employer
and the workman. Where industrial disputes are pendent
lite before an authority mentioned in the section, it was
thought necessary that such disputes should be conciliated
or adjudicated upon by the authority in a peaceful
atmosphere, undisturbed by any subsequent causes for
bitterness or unpleasantness. To achieve this object, a ban
has been imposed upon the employer exercising his
common law, statutory or contractual right to terminate the
services of his employees according to contract or the
provision of law governing such service. The ordinary right
of the employer to alter the terms of his employees' services
to their prejudice or to terminate their services under the
general law governing contract of employment, has been
banned subject to certain conditions. This ban, therefore,
is designed to restrict the interference of the general rights
and liabilities of the parties under the ordinary law within
the limits truly necessary for accomplishing the object of
those provisions. Anxiety to know about ban on the right
of the employer, persuades me to reproduce the provisions
of Section 33 of the Act thus:
"33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.—(1) During the pendency of any
conciliation proceeding before a conciliation officer
or a Board or of any proceeding before an arbitrator
or a Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall,—
(a)
in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before
the commencement of such proceeding; or
(b)
for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workman
concerned in such dispute, save with the
express permission in writing of the authority
before which the proceeding is pending.
(2) During the pendancy of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with standing orders applicable to a workman
concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the
workman—
(a)
alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before
the commencement of such proceeding; or
(b)
for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, that workman:—
Provided that no such workman shall be discharged
or dismissed, unless he has been paid wages for one month
and an applicable has been made by the employer to the
authority before which the proceeding is pending for
approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendency of any
such proceeding in respect of an industrial dispute, take
any action against any protected workman concerned in
such dispute—
(a)
by altering to the prejudice of such protected
workman, the conditions of service applicable
to him immediately before the commencement
of such proceeding; or
(b)
by discharging or punishing, whether any
dismissal or otherwise, such protected
workman,
Save with the express permission in writing of the
authority before which the proceeding is pending.
Explanation.— For the purposes of this sub-section,
a "protected workman", in relation to an establishment,
means a workman who, being a member of the executive or
other office bearer of a registered trade union connected
with the establishment, is recognized as such in accordance
with rules made in this behalf.
(4) In every establishment, the number of workmen
to be recognized as protected workmen for the purposes of
sub-section (3) shall be one per cent of the total number of
workmen employed therein subject to a minimum number
of five protected workmen and a maximum number of one
hundred protected workmen and for the aforesaid purpose,
the appropriate Government may make rules providing for
the distribution of such protected workmen among various
trade unions, if any, connected with the establishment and
the manner in which the workmen may be chosen and
recognized as protected workmen.
6120
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
(5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator, a Labour Court,
Tribunal or National Tribunal under the proviso to sub-
section (2) for approval of the action taken by him, the
authority concerned shall, without delay, hear such
application and pass, within a period of three months from
the date of receipt of such application, such order in relation
thereto as it deems fit.
Provided that where any such authority considers it
necessary or expedient so to do, it may, for reasons to be
recorded in writing, extend such period by such further
period as it may think fit.
Provided further that no proceedings before any
such authority shall lapse merely on the ground that any
period specified in this sub-section had expired without
such proceedings being completed.
11. As noted above sub-sections (1) and (2) are
designed for different purposes since sub-section (1)
applies to the proposition when the employer wants to
alter service conditions of the workman to his prejudice in
regard to any matter connected with the dispute or for any
misconduct connected with the dispute, in that situation
he is obliged to seek prior permission in writing of the
authority before whom the dispute is pending and in a
case where the employer wants to alter service conditions
of a workman in regard to a matter not connected with the
dispute or for any misconduct not connected with the
dispute, in that situation he is obliged to seek approval of
the order under sub-section (2) of the aforesaid section.
When an employer violates the provisions of sub-section
(1) or sub-section (2) of section 33 of the Act, an instant
remedy is provided to the workman by the provisions of
section 33A of the Act. In other words, where an employer
has contravened the provisions of section 33, the aggrieved
workman has been given the option to make a complaint in
writing, to the authority before which an industrial dispute
is pending, with which the aggrieved workman is
concerned. The complaint of such contravention can be
made not to the adjudicating authorities, but to the
conciliatory authority also. If a complaint is made to a
conciliatory authority, viz. a Conciliation Officer or a Board
of Conciliation, clause (a) of section 33 A of the act
authorizes a Conciliation Officer or the Board to take such
complaint into account in bringing about a settlement of
the complained dispute. The Conciliation Officer or the
Board is not empowered to adjudicate upon the dispute,
which is the area of adjudicatory authorities. When a
complaint is made to adjudicatory authority viz. Arbitrator,
Labour Court, Tribunal or National Tribunal, it will
adjudicate upon the dispute as if it is a dispute referred to
or pending before it.
12. To attract the provisions of section 33A of the
Act, following conditions precedent are to be satisfied.
1.
that there should have been a contravention
by the management of the provisions of section
33 of the Act,
2.
that the contravention should have been
during the pendancy of the proceedings before
the conciliatory authorities or Labour Court,
Tribunal or National Tribunal, as the case may
be.
3.
that the complainant should have been
aggrieved by the contravention, and
4.
that the application should have been made to
the Labour Court, Tribunal or the National
Tribunal in which original proceedings are
pending.
13. It is obligatory on the claimant to establish on
record that the Corporation has contravened provisions of
section 33 of the Act, during pendancy of adjudication
proceedings in respect of the dispute registered as ID No.
32/2003. In order to discharge that onus, claimant was duty
bound to adduce evidence to establish that his services
were dispensed with by the Corporation. Instead of
adducing any evidence, the claimant opted not to enter the
withness box. Therefore, there remains complete vacuum
of evidence to the effect as to whether services of the
claimant were dispensed with during pendancy of the
aforesaid industrial dispute before the Tribunal. Not even
an iota of evidence is over the record to conclude that the
Corporation has violated provisions of section 33 of the
Act . Onus was on the claimant to establish contravention
of the provisions of section 33 of the Act, which has not
been discharged by him. In absence of material evidence,
findings cannot be recorded to hte effect that the
Corporation dispensed with the services of the claimant
and contravened provisions of section 33 of the Act. For
desideratum of evidence, it is concluded that the claimant
has miserably failed to establish that the Corporation has
contravened provisions of section 33 of the Act, during
pendency of adjudication proceedings of the dispute
referred above. Resultantly, the issue is answered against
the claimant and in favour of the Corporation.
Issue No. 3
14. In view of the findings on issue No. 2, it is
apparent that the claimant is not entitled to any relief.
Complaint, raised by the claimant under section 33A of the
Act, cannot be answered in his favour. He is not entitled to
any relief. Resultantly, his complaint is dismissed. An award
is, accordingly, passed. It be sent to the appropriate
Government for publication.
Dr. R.K YADAV, Presiding Officer
Dated: September 13, 2013
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6121
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING OFFICER,
CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL
NO. 1. KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 56/2013
Shri Devendra Singh Negi,
S/o late Shri Nandan Singh,
Through New Delhi General Mazdoor Union,
R/o B-89, Gulmohar Park,.
New Delhi-110 049
....Workman
Versus
The Chairman and Managing Director,
Indian Oil Corporation Ltd.
Scope Complex, Core 2,
Lodhi Road,
New Delhi
.....Management
AWARD
Indian Oil Corporation Ltd. (hereinafter referred to
as the Corporation) operates seven refineries located at
Digboi, Guwahati, Barauni, Gujarat, Haldia, Mathura and
Panipat. Corporation carries out distribution of various
essential petroleum products to general public, industries,
railways and defence services through a vast marketing
network and pipelines situated at various locations in the
country. To ensure production and supply of petroleum
products, the Corporation employs various personnel.
Recruitment is made by the Corporation according to
recruitment rules applicable to it.
2. Corporation awarded some work to a contractor,
who employed certain persons to carry out the job so
awarded to him. Persons employed by the contractor
preferred a writ petition before High Court of Delhi bearing
CWP NO. 7377 of 99, seeking their regularization in services
of the Corporation. The said writ petition was dismissed
vide order dated 19.10.2001. Thereafter, 18 persons
approached the Conciliation Officer, seeking regularization
of their job with the Corporation. When conciliation
proceedings ended into a failure, the appropriate
Government referred the dispute to this Tribunal for
adjudication vide order No.L-30011/90/2002-IR(M), New
Delhi dated 17.03.2003 with the following terms:
"Whether the action of the management of Refinery
Division, HQ, IOCL, New Delhi in not regularizing
the services of 18 workmen (as per the list attached)
from the date of initial appointment is just, fair and
legal? If not, what relief the 18 workmen are entitled
to and from which date?"
3. Claim statement was filed on behalf of the claimant
wherein it was asserted that they were engaged by the
Corporation on different dates since Marcy 1980 till October,
1989. They rendered continuous service to the Corporation.
They claim for reinstatement in the service of the Corporation
since the date of their initial appointment(s). Their claim
was resisted in the written statement, wherein the
Corporation pleads that there was no relationship of
employer and employee between the parties and as such,
claimants are not entitled to any relief of regularization of
their service.
4. During the course of adjudication of the said
dispute, present complaint has been filed under section
33A of the industrial Disputes Act, 1947 (in short the Act)
alleging therein that services of the claimant were dispensed
with by the Corporation with effect from 31.01.2006.
Complaint sought indulgence of this Tribunal for his
reinstatement in the service since the date of his
termination, effected by the management. In the written
statement, Corporation takes the very plea taken in the
industrial dispute and agitates that claimant was not their
employee. It has been asserted that there was no action on
the part of the Corporation to terminate services of the
claimant. The Corporation presents that the complaint,
under reference, may be dismissed, being devoid of merits.
5. On pleadings of the parties following issues were
settled:
(1)
Whether claimant is a workman concerned in
the dispute referred for adjudication on
17.03.2003 to this Tribunal?
(2)
Whether management violated provisions of
section 33 of the Industrial Disputes Act, 1947?
(3)
Whether claimant is entitled to relief of
reinstatement in service?
6. No evidence was adduced on behalf of the
claimant, despite grant of more than reasonable
opportunities. When claimant failed to adduce evidence,
the Corporation opted not to adduce any evidence in the
matter.
7. Arguments were heard at the bar. Shri B.K. Prasad,
authorized representative, raised submission on behalf of
the claimant. Shri Vinay Sabharwal, authorized
representative, presented facts on behalf of the Corporation.
I have given my careful considerations to the arguments
advanced at the bar and cautiously perused the record.
My findings on issues involved in the controversy, are as
follows:—
Issue No. 1
8. For the purpose of section 33 of the Act, the
workman should not only be a workman within the meaning
of section 2(s) of the Act but should also be 'concerned in
the dispute pending before the Tribunal'. Workmen
'concerned in the industrial dispute' obviously constitute
group which might be less comprehensive in its scope
6122
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
than all the workmen employed in that industry or even in
one establishment of that industry. The word 'concerned,
means interested, engaged, having a connection with' or
interested/involved'. In order to substantiate the claim of
contravention of section 33, the workman has to show that
he was 'concerned' with the pending dispute in any of the
manners envisaged by the expression. It is necessary for
the workman who wants to come within the category of
workman concerned in such dispute to prove that he is
interested in or has connection with the dispute already
pending for determination.
9. In the dispute registered as ID No.32/2003,
appropriate Government forwarded an issue relating to
regularization of services of 18 workmen with Indian Oil
Corporation Ltd. List of those 18 workmen was annexed
with schedule of reference. Name of the claimant appears
at SI.No.3 of the said list. Thus, it is evident that the claimant
was one of the workmen, who had raised the dispute, which
was pending adjudication when his services were allegedly
dispensed with. Taking cognizance of these facts, it is
concluded that the claimant was concerned in the dispute
pending adjudication before this Tribunal. The issue is,
therefore, answered in favour of the claimant and against
the Corporation.
Issue No. 2
10. Section 33 of the Act bars alteration in conditions
of service "prejudicial" to the workman concerned in the
dispute and punishment of discharge or dismissal when
either is connected with pendente lite industrial dispute
"save with the permission of the authorities before which
the proceedings is pending" or where the discharge or
dismissal is for any misconduct not connected with the
pendente lite industrial dispute without the "approval of
such authority". Prohibition contained in section 33 of the
Act is two fold. On one hand, they are designed to protect
the workman concerned during the course of industrial
conciliation, arbitration and adjudication, against
employers' harassment and victimization, on account of
their having raised the industrial dispute or their continuing
the pending proceedings and on the other, they seek to
maintain status quo by prescribing management conduct
which may give rise to "fresh dispute" which further
exacerbate the already strained relations between employer
and the workman. Where industrial disputes are pendente
lite before an authority mentioned in the section, it was
thought necessary that such disputes should be conciliated
or adjudicated upon by the authority in a peaceful
atmosphere, undisturbed by any subsequent causes for
bitterness or unpleasantness. To achieve this object, a ban
has been imposed upon the employer exercising his
common law, statutory or contractual right to terminate the
services of his employees according to contract or the
provisions of law governing such service. The ordinary
right of the employer to alter the terms of his employees'
services to their prejudice or to terminate their services
under the general law governing contract of employment,
has been banned subject to certain conditions. This bar,
therefore, is designed to restrict the interference of the
general rights and liabilities of the parties under the ordinary
law within the limits truly necessary for accomplishing the
object of those provisions Anxiety to know about ban on
the right of the employer, persuades me to reproduce the
provisions of section 33 of the Act thus:
"33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendancy of
proceedings. —(1) During the pendancy of any
conciliation proceeding before a conciliation officer
or a Board or of any proceeding before an arbitrator
or a Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall,—
(a)
in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before
the commencement of such proceeding; or
(b)
for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workman
concerned in such dispute, save with the
express permission in writing of the authority
before which the proceeding is pending.
(2) During the pendancy of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with standing orders applicable to a workman
concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the
workman—
(a)
alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before
the commencement of such proceeding ; or
(b)
for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, that workman:
Provided that no such workman shall be discharged
or dismissed, unless he has been paid wages for one month
and an application has been made by the employer to the
authority before which the proceeding is pending for
approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendancy of any
such proceeding in respect of an industrial dispute, take
any action against any protected workman concerned in
such dispute —
(a)
by altering, to the prejudice of such protected
workman, the conditions of service applicable
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6123
to him immediately before the commencement
of such proceeding; or
(b)
by discharging or punishing, whether any
dismissal or otherwise, such protected
workman,
save with the express permission in writing of the authority
before which the proceeding is pending.
Explanation. — For the purposes of this sub-
section, a "protected workman", in relation to an
establishment, means a workman who, being a member of
the executive or other office bearer of a registered trade
union connected with the establishment, is recognized as
such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen
to be recognized as protected workmen for the purposes of
sub-section (3) shall be one per cent of the total number of
workmen employed therein subject to a minimum number
of five protected workmen and a maximum number of one
hundred protected workmen and for the aforesaid purpose,
the appropriate Government may make rules providing for
the distribution of such protected workmen among various
trade unions, if any, connected with the establishment and
the manner in which the workmen may be chosen and
recognized as protected workmen.
(5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator, a Labour Court,
Tribunal or National Tribunal under the proviso to sub-
section (2) for approval of the action taken by him, the
authority concerned shall, without delay, hear such
application and pass, within a period of three months from
the date of receipt of such application, such order in relation
thereto as it deems fit.
Provided that where any such authority considers it
necessary or expedient so to do, it may, for reasons to be
recorded in writing, extend such period by such further
period as it may think fit.
Provided further that no proceedings before any
such authority shall lapse merely on the ground that any
period specified in this sub-section had expired without
such proceedings being completed.
11. As noted above sub-sections (1) and (2) are
designed for different purposes since sub-section (1)
applies to the proposition when the employer wants to
alter service conditions of the workman to his prejudice in
regard to any matter connected with the dispute or for any
misconduct connected with the dispute, in that situation
he is obliged to seek prior permission in writing of the
authority before whom the dispute is pending and in a
case where the employer wants to alter service conditions
of a workman in regard to a matter not connected with the
dispute or for any misconduct not connected with the
dispute, in that situation he is obliged to seek approval of
the order under sub-section (2) of the aforesaid section.
When an employer violates the provisions of sub-section
(1) or sub-section (2) of section 33 of the Act, an instant
remedy is provided to the workman by the provisions of
section 33A of the Act. In other words, where an employer
has contravened the provisions of section 33, the aggrieved
workman has been giver the option to make a complaint in
writing, to the authority before which an industrial dispute
is pending, with which the aggrieved workman is
concerned. The complaint of such contravention can be
made not to the adjudicating authorities, but to the
conciliatory authority also. If a complaint is made to a
conciliatory authority, viz. a Conciliation Officer or a Board
of Conciliation, clause (a) of section 33 A of the act
authorizes a Conciliation Officer or the Board to take such
complaint into account in bringing about a settlement of
the complained dispute. The Conciliation Officer or the
Board is not empowered to adjudicate upon the dispute,
which is the area of adjudicatory authorities. When a
complaint is made to adjudicatory authority viz. Arbitrator,
Labour Court, Tribunal or National Tribunal, it will
adjudicate upon the dispute as if it is a dispute referred to
or pending before it.
12. To attract the provisions of section 33A of the
Act, following conditions precedent are to be satisfied.
1. `that there should have been a contravention by
the management of the provisions of section
33 of the Act,
2.
that the contravention should have been
during the pendancy of the proceedings before
the conciliatory authorities or Labour Court,
Tribunal or National Tribunal , as the case
may be.
3.
that the complainant should have been
aggrieved by the contravention, and
4.
that the application should have been made to
the Labour Court, Tribunal or the National
Tribunal in which original proceedings are
pending.
13. It is obligatory on the claimant to establish on
record that the Corporation has contravened provisions of
section 33 of the Act, during pendancy of adjudication
proceedings in respect of the dispute registered as ID
No.32/2003. In order to discharge that onus, claimant was
duty bound to adduce evidence to establish that his
services were dispensed with by the Corporation. Instead
of adducing any evidence, the claimant opted not to enter
the witness box. Therefore, there remains complete vacuum
of evidence to the effect as to whether services of the
6124
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
claimant were dispensed with during pendancy of the
aforesaid industrial dispute before the Tribunal. Not even
an iota of evidence is over the record to conclude that the
Corporation has violated provisions of section 33 of the
Act. Onus was on the claimant to establish contravention
of the provisions of section 33 of the Act, which has not
been discharged by him. In the absence of material evidence,
findings cannot be recorded to the effect that the
Corporation dispensed with the services of the claimant
and contravened provisions of srction 33 of the Act. For
desideratum of evidence, it is concluded that the claimant
has miserably failed to establish that the Corporation has
contravened provisions of section 33 of the Act, during
pendancy of adjudication proceedings of the dispute
referred above. Resultantly, the issue is answered against
the claimant and in favour of the Corporation.
Issue No. 3
14. In view of the findings on issue No.2, it is apparent
that the claimant is not entitled to any relief. Complaint,
raised by the claimant under section 33A of the Act, cannot
be answered in his favour. He is not entitled to any relief.
Resultantly, his complaint is dismissed. An award is,
accordingly, passed. It be sent to the appropriate
Government for publication.
Dr. R. K. YADAV, Presiding Officer
Dated: September 13, 2013
ANNEXURE
BEFORE DR. R.K. YADAV, PRESIDING
OFFICER, CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL NO. 1,
KARKARDOOMA COURTS COMPLEX,
DELHI
I.D. No. 50/2013
Shri Prakash Singh,
S/o Shri Ranjit Singh,
Through New Delhi General Mazdoor Union,
R/o B-89, Gulmohar Park,
New Delhi 110 049
....Workman
Versus
The Chairman and Managing Director,
Indian Oil Corporation Ltd.,
Scope Complex, Core 2
Lodhi Road,
New Delhi
....Management
AWARD
Indian Oil Corporation Ltd. (hereinafter referred to
as the Corporation) operates seven refineries located at
Digboi, Guwahati, Barauni, Gujarat, Haldia, Mathura and
Panipat. Corporation carries out distribution of various
essential petroleum products to general public, industries,
railways and defence services through a vast marketing
network and pipelines situated at various locations in the
country. To ensure production and supply of petroleum
products, the Corporation employs various personnel.
Recruitment is made by the Corporation according to
recruitment rules applicable to it.
2. Corporation awarded some work to a contractor,
who employed certain persons to carry out the job so
awarded to him. Persons employed by the contractor
preferred a writ petition before High court of Delhi bearing
CWP No.7377 of 99, seeking their regularization in services
of the Corporation. The said writ petition was dismissed
vide order dated 13.09.2001. Later patent appeal was also
dismissed vide order dated 19.10.2001. Thereafter, 18
persons approached the Conciliation Officer, seeking
regularization of their job with the Corporation. When
conciliation proceedings ended into a failure, the appropriate
Government referred the dispute to this Tribunal for
adjudication vide order No.L-30011/90/2002-IR(M),
New Delhi dated 17.03.2003 with the following terms:
"Whether the action of the management of Refinery
Division, HQ, IOCL, New Delhi in not regularizing
the services of 18 workmen (as per the list attached)
from the date of initial appointment is just, fair and
legal? If not, what relief the 18 workmen are entitled
to and from which date?"
3. Claim statement was filed on behalf of the claimant
wherein it was asserted that they were engaged by the
Corporation on different dates since March 1980 till October
1989. They rendered continuous service to the Corporation.
They claim for reinstatement in the service of the
Corporation since the date of their initial appointment(s).
Their claim was resisted in the written statement, wherein
the Corporation pleads that there was no relationship of
employer and employee between the parties and as such,
claimants are not entitled to any relief of regularization of
their service.
4. During the course of adjudication of the said
dispute, present complaint has been filed under section
33A of the Industrial Disputes Act, 1947(in short the Act)
alleging therein that services of the claimant were dispensed
with by the Corporation with effect from 31.01.2006.
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6125
Complaint sought indulgence of this Tribunal for his
reinstatement in the service since the date of his
termination, effected by the management. In the written
statement, Corporation takes the very plea taken in the
industrial dispute and agitates that claimant was not their
employee. It has been asserted that there was no action on
the part of the Corporation to terminate services of the
claimant. The Corporation presents that the complaint,
under reference, may be dismissed, being devoid of merits.
5. On pleadings of the parties following issues were
settled:
(1)
Whether claimant is a workman concerned in
the dispute referred for adjudication on
17.03.2003 to this Tribunal?
(2)
Whether management violated provisions of
section 33 of the Industrial Disputes Act, 1947?
(3)
Whether claimant is entitled to relief of
reinstatement in service?
6. No evidence was adduced on behalf of the
claimant, despite grant of more than reasonable
opportunities. When claimant failed to adduce evidence,
the Corporation opted not to adduce any evidence in the
matter.
7. Arguments were heard at the bar. Shri B.K. Prasad,
authorized representative, raised submission on behalf of
the claimant. Shri Vinay Sabharwal, authorized
representative, presented facts on behalf of the Corporation.
I have given my careful considerations to the arguments
advanced at the bar and cautiously perused the record.
My findings on issues involved in the controversy, are as
follows:—
Issue No. 1
8. For the purpose of section 33 of the Act, the
workman should not only be a workman within the meaning
of section 2(s) of the Act but should also be 'concerned in
the dispute pending before the Tribunal'. Workmen
'concerned in the industrial dispute' obviously constitute
group which might be less comprehensive in its scope
than all the workmen employed in that industry or even in
one establishment of that industry. The word 'concerned,
means 'interested, engaged, having a connection with' or
interested/involved'. In order to substantiate the claim of
contravention of section 33, the workman has to show
that he was 'concerned' with the pending dispute in any of
the manners envisaged by the expression. It is necessary
for the workman who wants to come within the category of
workman concerned in such dispute to prove that he is
interested in or has connection with the dispute already
pending for determination.
9. In the dispute registered as ID No.32/2003,
appropriate Government forwarded an issue relating to
regularization of services of 18 workmen with Indian Oil
Corporation Ltd. List of those 18 workmen was annexed
with schedule of reference. Name of the claimant appears
at Sl. No.11 of the said list. Thus, it is evident that the
claimant was one of the workmen, who had raised the
dispute, which was pending adjudication when his services
were allegedly dispensed with. Taking cognizance of these
facts, it is concluded that the claimant was concerned in
the dispute pending adjudication before this Tribunal. The
issue is, therefore, answered in favour of the claimant and
against the Corporation.
Issue No. 2
10. Section 33 of the Act bars alteration in conditions
of service "prejudicial" to the workman concerned in the
dispute and punishment of discharge or dismissal when
either is connected with pendente lite industrial dispute
"save with the permission of the authorities before which
the proceedings is pending" or where the discharge or
dismissal is for any misconduct not connected with the
pendente lite industrial dispute without the "approval of
such authority". Prohibition contained in section 33 of the
Act is two fold. On one hand, they are designed to protect
the workman concerned during the course of industrial
conciliation, arbitration and adjudication, against
employers' harassment and victimization, on account of
their having raised the industrial dispute or their continuing
the pending proceedings and on the other, they seek to
maintain status quo by prescribing management conduct
which may give rise to "fresh dispute" which further
exacerbate the already strained relations between employer
and the workman. Where industrial disputes are pendente
lite before an authority mentioned in the section, it was
thought necessary that such disputes should be conciliated
or adjudicated upon by the authority in a peaceful
atmosphere, undisturbed by any subsequent causes for
bitterness or unpleasantness. To achieve this object, a ban
has been imposed upon the employer exercising his
common law, statutory or contractual right to terminate the
services of his employees according to contract or the
provisions of law governing such service. The ordinary
right of the employer to alter the terms of his employees'
services to their prejudice or to terminate their services
under the general law governing, contract of employment,
has been banned subject to certain conditions. This ban,
therefore, is designed to restrict the interference of the
general rights and liabilities of the parties under the ordinary
law within the limits truly necessary for accomplishing the
object of those provisions. Anxiety to know about ban on
6126
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
the right of the employer, persuades me to reproduce the
provisions of section 33 of the Act thus:
"33. Conditions of service, etc., to remain unchanged
under certain circumstances during pendancy of
proceedings. —(1) During the pendancy of any
conciliation proceeding before a conciliation officer
or a Board or of any proceeding before an arbitrator
or a Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall ,-
(a)
in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of
service applicable to them immediately before
the commencement of such proceeding; or
(b)
for any misconduct connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, any workman
concerned in such dispute, save with the
express permission in writing of the authority
before which the proceeding is pending.
(2) During the pendancy of any such proceeding in
respect of an industrial dispute, the employer may, in
accordance with standing orders applicable to a workman
concerned in such dispute or, where there are no such
standing orders, in accordance with the terms of the
contract, whether express or implied, between him and the
workman—
(a)
alter, in regard to any matter not connected
with the dispute, the conditions of service
applicable to that workman immediately before
the commencement of such proceeding ; or
(b)
for any misconduct not connected with the
dispute, discharge or punish, whether by
dismissal or otherwise, that workman:
Provided that no such workman shall be discharged
or dismissed, unless he has been paid wages for one month
and an application has been made by the employer to the
authority before which the proceeding is pending for
approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the pendancy of any
such proceeding in respect of an industrial dispute, take
any action against any protected workman concerned in
such dispute —
(a)
by altering, to the prejudice of such protected
workman, the conditions of service applicable
to him immediately before the commencement
of such proceeding; or
(b)
by discharging or punishing, whether any
dismissal or otherwise, such protected
workman,
save with the express permission in writing of the
authority before which the proceeding is pending.
Explanation. — For the purposes of this sub-
section, a "protected workman", in relation to an
establishment, means a workman who, being a member of
the executive or other office bearer of a registered trade
union connected with the establishment, is recognized as
such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen
to be recognized as protected workmen for the purposes of
sub-section (3) shall be one per cent of the total number of
workmen employed therein subject to a minimum number
of five protected workmen and a maximum number of one
hundred protected workmen and for the aforesaid purpose,
the appropriate Government may make rules providing for
the distribution of such protected workmen among various
trade unions, if any, connected with the establishment and
the manner in which the workmen may be chosen and
recognized as protected workmen.
(5) Where an employer makes an application to a
conciliation officer, Board, an arbitrator, a Labour Court,
Tribunal or National Tribunal under the proviso to sub-
section; (2) for approval of the action taken by him, the
authority concerned shall, without delay, hear such
application and pass, within a period of three months from
the date of receipt of such application, such order in relation
thereto as it deems fit:
Provided that where any such authority considers it
necessary or expedient so to do, it may, for reasons to be
recorded in writing, extend such period by such further
period as it may think fit:
Provided further that no proceedings before any
such authority shall lapse merely on the ground that any
period specified in this sub-section had expired without
such proceedings being completed.
11. As noted above sub-sections (1) and (2) are
designed for different purposes since sub-section (1)
applies to the proposition when the employer wants to
alter service conditions of the workman to his prejudice in
regard to any matter connected with the dispute or for any
misconduct connected with the dispute, in that situation
he is obliged to seek prior permission in writing of the
authority before whom the dispute is pending and in a
case where the employer wants to alter service conditions
of a workman in regard to a matter not connected with the
dispute or for any misconduct not connected with the
dispute, in that situation he is obliged to seek approval of
the order under sub-section (2) of the aforesaid section.
When an employer violates the provisions of
sub-section (1) or sub-section (2) of section 33 of the Act,
an instant remedy is provided to the workman by the
provisions of section 33A of the Act. In other words,
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6127
where an employer has contravened the provisions of
section 33, the aggrieved workman has been given the
option to make a complaint in writing, to the authority
before which an industrial dispute is pending, with which
the aggrieved workman is concerned. The complaint of
such contravention can be made not to the adjudicating
authorities, but to the conciliatory authority also. If a
complaint is made to a conciliatory authority, viz. a
Conciliation Officer or a Board of Conciliation, clause (a) of
section 33 A of the act authorizes a Conciliation Officer or
the Board to take such complaint into account in bringing
about a settlement of the complained dispute. The
Conciliation Officer or the Board is not empowered to
adjudicate upon the dispute, which is the area of
adjudicatory authorities. When a complaint is made to
adjudicatory authority viz. Arbitrator, Labour Court,
Tribunal or National Tribunal, it will adjudicate upon the
dispute as if it is a dispute referred to or pending before it.
12.To attract the provisions of section 33A of the
Act, following conditions precedent are to be satisfied:
1.
that there should have been a contravention
by the management of the provisions of section
33 of the Act,
2.
that the contravention should have been
during the pendancy of the proceedings before
the conciliatory authorities or Labour Court,
Tribunal or National Tribunal , as the case may
be,
3.
that the complainant should have been
aggrieved by the contravention, and
4.
that the application should have been made to
the Labour Court, Tribunal or the National
Tribunal in which original proceedings are
pending.
13.It is obligatory on the claimant to establish on
record that the Corporation has contravened provisions of
section 33 of the Act, during pendancy of adjudication
proceedings in respect of the dispute registered as ID
No.32/2003. In order to discharge that onus, claimant was
duty bound to adduce evidence to establish that his
services were dispensed with by the Corporation. Instead
of adducing any evidence, the claimant opted not to enter
the witness box. Therefore, there remains complete vacuum
of evidence to the effect as to whether services of the
claimant were dispensed with during pendancy of the
aforesaid industrial dispute before the Tribunal. Not even
an iota of evidence is over the record to conclude that the
Corporation has violated provisions of section 33 of the
Act. Onus was on the claimant to establish contravention
of the provisions of section 33 of the Act, which has not
been discharged by him. In the absence of material evidence,
findings cannot be recorded to the effect that the
Corporation dispensed with the services of the claimant
and contravened provisions of section 33 of the Act. For
desideratum of evidence, it is concluded at the claimant
has miserably failed to establish that the Corporation has
contravened provisions of section 33 of the Act, during
pendancy of adjudication proceedings of the dispute
referred above. Resultantly, the issue is answered against
the claimant and in favour of the Corporation.
Issue No.3
14.In view of the findings on Issue No 2, it is apparent
that the claimant is not entitled to any relief. Complaint,
raised by the claimant under section 33A of the Act, cannot
be answered in his favour. He is not entitled to any relief.
Resultantly, his complaint is dismissed. An award is,
accordingly, passed. It be sent to the appropriate
Government for publication.
Dated: 13.9.2013
Dr. R.K. YADAV, Presiding Officer.
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vkS|ksfxd vf/kdj.k ,oa Je U;k;y;] ukxiqj ds iapkV ¼lanHkZ la[;k
49@2007½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks
23-09-2013 dks izkIr gqvk FkkA
[lañ ,y&11012@12@2007&vkbZ vkj¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2304.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 49/2007)
of the Central Government Industrial Tribunal/Labour
Court, Nagpur now as in the Annexure in the Industrial
Dispute between the employers in relation to the
management of Air Port Director, Nagpur and their workman,
which was received by the Central Government on
23.09.2013.
[No. L-11012/12/2007-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE SHRI J. P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT-NGP/49/2007
Party No. 1
:
The Airport Director, (NAD),
Nagpur Airport, Regional Office,
Nagpur
6128
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
Party No. 2
:
Shri Ramesh Shankarrao Nandgave,
C/o. R.N. Sindel, Plot No. 99,
Nardelwar Nagar, in Front of D.S.
Vidhyalaya, Wardha Road,
Chinch Bhavan Post: Khapri, Nagpur.
AWARD
(Dated: 19th August, 2013)
In excercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of Airport Authority of India and their
workman, Shri Ramesh Nandgave, for adjudication, as per
letter No.L-11012/12/2007-IR(M) dated 27.08.2007, with the
following schedule:-
"Whether the action of the management of Airport
Authority of India through its Airport Director,
Nagpur in terminating the service of workman
Shri Ramesh Shankarrao Nandgave w.e.f.. 07.04.1999
is legal and justified? If not, then what is the relief
the workman is entitled to?"
2. On receipt of the reference, the parties were noticed
to file their respective statement of claim and written
statement and accordingly, the workman, Shri Ramesh
Nandgave, ('the workman" in short), filed the statement of
claim and the management of Airport Authority of India,
(''Party No. 1'' in short) filed their written statement.
The case of the workman is that he was in the
employment of Party No. 1 and was working as a permanent
motor driver (higher grade) (MTD) and he has completed
19 years of unblemished service, but Party No. 1 removed
him from service w.e.f. 07.04.1999 illegally, in an absolutely
arbitrary manner and in violation of the principles of natural
justice and his removal from services was without
conducting of any departmental enquiry, but the same was
done in a haste, on false allegation and trumped-up-charge
of absence without leave and on receipt of the
"memorandum" issued by the Party No. 1, on 26.03.1999,
though he was suffering from jaundice, he approached the
Party No. 1, in person on 26.03.1999 itself, alongwith joining
report and medical certificate to join duty, which was within
the stipulated period as mentioned in the said memorandum,
but he was instructed by the Airport Director to see the
EMO for submission of the joining report, but at the relevant
time, the EMO was not present in his cabin, for which, he
waited for the return of the EMO and the EMO returned to
the office in the evening hours and asked him to come on
the next day and from 26.03.1999 to 9th April 1999, he
approached the EMO and Airport Director daily to allow
him to join duty, but they refused to accept and acknowledge
the joining report and medical certificate and he made
number of representation to the concerned higher
authorities for redress of his genunie grievances, but of no
avail and as such, the industrial dispute was raised by him.
It is further pleaded by the workman that his services
were terminated during the process of his transfer from
Nagpur to Indore on promotion as "Dirver Super".
The workman has prayed for his reinstatement in
service with continuity and full back wages.
3. In the written statement, it has been pleaded by
Party No.1 inter-alia that the workman was initially
appointed in Civil Aviation Department on 07.09.1981 as a
driver (fire) and subsequently, he was absorbed in National
Airport Authority of India w.e.f. 02.10.1989 and his service
was placed with Airport Authority of India from 01.04.1995
and he was re-mustered to the post of M.T. Driver (higher
grade) from driver (fire) since 04.03.1996 and the workman
absconded from 05.06.1996 to 13.011.1998 (for a total period
of 523 days) and remained absent from duty without any
leave and as such, the services of the workman were
terminated after completion of all necessary legal proceeding
including giving of press notice and it had issued 14
memorandums in between 24.10.1990 to 12.01.1999 and three
memos were issued followed by notice in Newspaper to
the workman, before he was terminated from services, but
he did not come to join his duty within the stipulated time
and as the workman had not approached to join his duty
within the stipulated period, after issuance of the memos
and notices, there was no question of refusing to accept
and acknowledge the joining report and medical certificate
by its authority and the workman was never vigilant and
he did not try to give any explanation regarding his absence
and though the workman had submitted that he was ill
from jaundice, he failed to intimate about his illness or to
submit any leave application to it and as the workman was
absent from duty without prior permission for a period of
380 days during the period from 25.04.1997 to 25.10.1998
and in view of the irregular attendance, careless driving
habit and misconduct of the workman, the Airport Director
had recommended to the Regional Executive Director,
Mumbai for his transfer and the Regional Executive Director,
Mumbai had issued the order of transfer of the workman
from Nagpur to Indore on administrative ground and the
workman was not transferred on promotion of driver
supervisor and the claim of the workman is based on false
and imaginary grounds and the mandatory provisions was
not complied with by the workman and the claim has been
filed beyond limitation and is therefore liable to be
dismissed.
The specific plea of the Party No.1 is that the workman
absented from duty without information or prior sanction
of leave, so he was advised by memorandum no. Con/E2/
99/68-70 dated 10.03.1999 to submit his explanation for
remaining absent without authorized leave and to join duty
within 10 days of the issuance of the memorandum, failing
which, it would be presumed that he is not interested in
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6129
continuing his employment and the workman received the
memorandum, but neither he reported for duty nor
responded to the memorandum within the stipulated time,
so on 23.03.1999, again a memorandum was issued to the
workman intimating that he failed to join duty within the
stipulated time and remained absent unauthorisedly, from
which it could be presumed that he is disinterestness in
continuing in service and to submit his explanation as to
why his name should not be removed from the rolls and
he was directed to join duty within 15 days, but however,
the workman failed to join duty within the stipulated period,
so he was intimated that he had abandoned the employment
on his own volition and his name had been removed from
its rolls, which was followed by public notice in two local
news papers in Marathi and Hindi and after termination,
the workman press hard for his final payment of CPF/GSLIS/
gratuity and BF etc. and he had been paid a sum of
Rs. 1,06,050 towards CPF during November, 2000 and a
sum of Rs. 1100 towards BF during October, 2000 and
therefore, the workman is not entitled to any relief.
4. In the rejoinder, it has been pleaded by the
workman that the charge of absconding levelled against
him is frivolous, trumped-up and concocted and his claim
is based on absolute genuine and bona-fide grounds and
the filing of the claim is well within the limitation and
termination of his services was without following the due
procedure of law and principles of natural justice and equity
and so far the payment of CPF is concerned, it was
inevitable and unavoidable in the circumstances arising
out of termination of his service and the charge of his
frequent unauthorized absence is false and he is entitled
for reinstatement in service with continuity and full back
wages.
5. In support of their respective claims, both the
parties have led oral evidence, besides placing reliance on
documentary evidence.
Three witnesses including the workman have been
examined on behalf of the workman, whereas only one
witness, namely Shri R.P. Nandanwar has been examined
on behalf of the Party No. 1.
6. In his examination-in-chief, which is on affidavit,
the workman has reiterated the facts mentioned in the
statement of claim. In his cross-examination, the workman
has admitted that on 04.09.1996, he was appointed as a
higher grade M.T. Driver and on 01.04.1995, he had joined
in the office of the Airport Authority and he received the
memorandum dated 23.03.1999 issued by the Party No.1 on
26.03.1999 and after receipt of his termination letter, he
represented for release of his CPF and other entitlements.
7. The witness no.2, Shri Ramchandra Punjabrao
Bobde for the workman in his evidence has stated that he
was working as the senior superintendent of Fire and at
the relevant time i.e. the period during which, the process
of the termination of the workman was going on, Shri S.S.
Subhu was the EMO, who was the section incharge of the
M.T. Pool and repairing workshop and he had seen the
workman of making personal approaches from 26th March,
1999 to 9th April, 1990 to the EMO for the purpose of joining
duty even though he (workman) was suffering from
Jaundice and the workman was terminated from service
w.e.f. 7th April, 1999 without conducting any departmental
enquiry.
Though this witness has been cross-examined at
length, his evidence that the workman approached the EMO
from 26.03.1999 to 09.04.1999 for the purpose of joining
duty has remained un-assailed.
8. The evidence of witness no.3, Shri Rameshwar V.
Uike for the workman is also in the line of the evidence of
the witness no.2. The evidence of this witness in regard to
the facts that the workman had approached the EMO from
26.03.1999 to 09.04.1999, for the purpose of joining duty
has not been seriously challenged in the cross-examination.
9. The evidence of the witness for the Party No. 1 is
also on affidavit. This witness has also reiterated the facts
mentioned in the written statement, in his examination-in-
chief. This witness has also proved the memorandums
issued to the workman on 17.03.1998 and 01.07.1998 and
other documents as Exts. M-II to M-XVI.
In his cross-examination, the witness for Party No.1
has admitted that there was no departmental proceeding
against the workman and management did not submit any
charge sheet against the workman for remaining
unauthorized absence from 05.06.1996 to 07.04.1999 and
there was also no departmental enquiry against him.
10. At the time of argument, (written notes of
argument) it was submitted by the learned advocate for the
workman that there is sufficient material on record in the
form of cogent oral and conclusive documentary any
evidence to show that the workman was illegally and
unjustifiably terminated from services w.e.f. 07.04.1999 and
the termination of the workman was without submission of
charge sheet or conducting of any departmental enquiry
and the same was in complete violation of the principles of
natural justice and though after receipt of the memorandum
dated 23.03.1999, the workman approached the competent
authority personally from 26.03.1999 to 09.04.1999 to allow
him to join duty, he was not allowed to join duty and such
facts have been fully proved not only from the evidence of
the workman, but also, from the evidence of the two other
witnesses examined by the workman and the evidence
adduced by the management is devoid of merit and
substance and is without any basis and as such, the
workman is entitled for reinstatement in service with
continuity and full back wages.
11. Per contra, it was submitted by the learned
advocate for the Party No.1 that the workman remained
absent from duty without sanction of leave for 523 days in
6130
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
between 05.06.1996 to 13.11.1998 and the witness for the
management has stated about such facts in his evidence
and the documents Exts. M-IV and M-VII also prove such
facts and several memorandums were issued to the
workman by registered post with acknowledgement due to
join duty within the stipulated time and the workman
received the same, but inspite of the same, as the workman
did not join duty within the time given in the memorandums,
he was terminated from service and the termination of the
workman is legal and justified and the same was done after
compliance of all the legal formalities and Exts. M-II to
M-XVI amply prove such facts and the workman is not
entitled to any relief.
12. In this case, in paragraph one of the written
statement, the party no.1 has pleaded that, the workman
absconded from 05.06.1996 to 13.11.1998 and remained
absent from duty without leave and after completion of all
necessary legal proceedings including press notice, his
services were terminated. In paragraph five of the written
statement, it has been pleaded by party no. 1 that the
workman was absent from his duty without prior permission
for a period of 380 days during the period from 25.04.1997
to 25.10.1998 and on the recommendation of the Airport
Director, the Regional Executive Director, Mumbai had
issued order of transfer of the workman from Nagpur to
Indore on administrative ground and even after transfer
order, the workman did not approach the management and
after giving three notices successively, the workman was
terminated.
In paragraph 6 of the written statement, it has been
pleaded by party no.1 that the termination is caused due to
the long absence without leave and prior permission and
failing to explain his reason for being absent inspite of
various opportunities given to him, so he is not entitled for
relief claimed. In "special pleadings" also the party no.1
has taken the same stand.
13. On perusal of Ext. M-IV, the memorandum dated
01.07.1998 filed by the party no.1, it is found that the claim
of party no.1 that the workman absconded from 05.06.1996
to 13.11.1998 is not at all correct. Ext. M-IV shows the
periods of absence of the workman from duty and the
applications submitted by him for different leaves. In Ext.
M-IV, the workman was advised and cautioned to attend
duty punctually, regularly and in orderly manner, failing
which disciplinary action deemed fit would be taken against
him. From Ext. M-IV, which is a letter written by the Airport
Director to the Executive Director (WR), Mumbai Airport,
it is found that the workman had applied for medical leave
for the periods from 25.04.1997 to 17.07.1997, 12.08.1997 to
29.09.1997 and 11.07.1998 to 25.10.1998 and E.L. for
31.12.1997 to 19.05.1998. In the said letter, it has also been
mentioned that the workman while joining duty on
20.05.1998, requested for his transfer out of Nagpur and
the Airport Director recommended for his transfer.
Ext. M-VII, which is "compilation report against Shri
R.S. Nandgave, MTD" shows that the workman had
submitted applications for availing different leaves for the
different periods of his absence including the period from
31.12.1997 to 19.05.1998 and 11.07.1998 to 25.10.1998. In
Ext. M-VII, it has also been mentioned that message had
been received about the sickness of the workman for
remaining absence from 07.11.1998 to 13.11.1998, but unfit
certificate was not received. In the same document, it has
been mentioned that, At present from 07.11.1998 till date
(13.11.1998) he has reported for duty but informed through
ATC that he is sick. No unfit certificate received.
After reporting for duty in Nagpur, he was present
only for few days and in that few days he was found
maximum days in intoxicated mood.
It is therefore, requested that the necessary
disciplinary action may be taken against Shri R.S.
Nandgave, MTD and make it an example for other staff in
this section."
From the contents of the documents, it is clear that
the claim of the party no.1 that the workman absconded
from 05.06.1996 to 13.11.1998 is not all correct.
14. Though, the workman has denied the receipt of
the memorandums, Ext. M-II, M-IV and M-X, from the
acknowledgement due, it is found that the workman had
received the said memorandums. However, it is to be
mentioned here that vide memorandum, Ext. M-VIII, which
was issued on 23.03.1999, the workman was directed to
join duty within 15 days of the issue of the memorandum,
failing which it would be presumed that he is not interested
to continue in service. The stipulated 15 days time was to
expire on 07.04.2013, as the said memorandum was issued
on 23.031999. But, Ext. M-XII shows that the name of the
workman was removed from the rolls of party no.1 as per
order dated 05.04.1999, which was prior to the stipulated
time given to the workman for joining duty. Moreover, Ext.
M-XII does not indicate that the name of the workman was
removed from the rolls w.e.f. 07.04.1999. Hence, the order
passed on 05.04.1999 as per Ext. M-XII is illegal.
15. The most important point in this case is the legality
of the action of the party no.1 in terminating the services of
the workman. Admittedly, no charge sheet of any kind for
commission of any misconduct including remaining of
unauthorized absence was submitted against the workman.
It is also admitted that no departmental enquiry was
conducted against the workman for remaining unauthorized
absence. None of the memorandums or other documents
filed by the party no. 1 shows as to under what provisions
of law, Rules, Regulations, Certified Standing Orders if any
or Bipartite settlement if any, the memorandums were issued
and the order of termination was passed. The party no.1
has also not mentioned under what provisions the order of
termination of the workman was passed either in the written
statement or in the evidence adduced in the reference. The
party no.1 has also not produced any Rules or Regulation
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6131
or any other relevant documents to show the provision of
terminating the services of the workman by merely serving
memorandums to join duty, without taking action by
initiating departmental proceedings against him.
16. In view of the materials on record and the facts
mentioned above, it is found that the termination of the
workman is illegal and against the principles of natural
justice and the workman is entitled to reinstatement in
service with continuity. The submission of the application
by the workman for release of CPF cannot be taken as a
ground for holding the order of termination as valid.
So far the back wages is concerned, after taking into
consideration the facts and circumstances of the case, I
think that ends of justice will be met if 25% of the back
wages is granted in favour of the workman. Hence, it is
ordered:—
ORDER
The action of the management of Airport Authority
of India through its Airport Director, Nagpur in terminating
the service of workman Shri Ramesh Shankarrao Nandgave
w.e.f. 07.04.1999 is illegal and unjustified. The workman is
entitled for reinstatement in service with continuity and all
consequential reliefs and for 25% of back wages from
07.04.1999 to the date of his actual date of joining. The
party no.1 is directed to implement the award within 30
days of the publication of the award in the official gazette.
J. P. CHAND, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2305-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ iqVdk
igkM ekbal vkQ ckydksa ftyk foykliqj ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
tcyiqj ds iapkV ¼lanHkZ la[;k 2 @ 1997½ dks izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 23@9@2013 dks izkIr gqvk FkkA
[lañ ,y&43011@2@96&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2305.—In pursuance of section 17 of the
Indusutrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 2/97) of
the Central Government Industrial Tribunal/Labour Court,
Jabalpur now as shown in the Annexure in the Industrial
Dispute between the employers in relation to the
management of M/s Phutkapahar Mines of Balco, District
(Bilaspur) and their workman, which was received by the
Central Government on 23/9/2013.
[No. L-43011/2/96-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR
COURT, JABALPUR
NO. CGIT/LC/2/97
PRESIDING OFFICER: SHRI R.B PATLE
The Secretary
Samyukta Khadan Mazdoor Sangh (AITUC),
Branch Phutkapahar Mines of Balco,
PO Balco Nagar,
Korba, Distt. Bilaspur
....Workman/Union
Versus
Mines Manager,
Phutkapahar Mines of Balco,
Po Balco Nagar,
Distt. Bilaspur (MP)
....Management
Á W A R D
Passed on this 24th day of July, 2013
1. As per letter dated 27-12-96 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section - 10 of I.D. Act, 1947 as per Notification No.
L-43011/2/96-IR (Misc). The dispute under reference relates
to:
"Whether the demand of Samyukta Khadan Mazdoor
Sang (AITUC), Branch Phutkapahar Mines for
payment of leave with wages to the contract labour
of Phutkapahar Mines by the contractors namely
M/s. Narmada Transport Associates, M/s. Sidhy
Construction Company and M/s. U.S. Agarwal for
the period of contract from 17-5-93 to 7-6-95, 1-8-94
to 1-7-95 and from 18-7-94 to 20-5-95 respectively
and by the management of BALCO, Korba @ one
day for every 20 day of work taking into the Unions
eligibility criteria as mentioned below is justified? If
so, to what relief the workmen are entitled to?"
Vide corrigendum dated 5-2-97, the following is added
in the schedule-
"Ëligibility Criteria: Leave with wages should be paid
to all the contract laboures, who have worked 2/3rd
of period of contract excluding Sundays and paid
Holidays from the period of contract.''
2. After receiving reference, notices were issued to
the parties. Ist party did not appear and participate in the
reference proceedings. 1st party is proceeded exparate on
6-7-07.
3. Management has not field Written Statement or
evidence though the case was repeatdely fixed. Therefore
6132
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
it appears that parties are not in dispute.
4. In the result, No dispute award is passed.
R.B. PATLE, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2306-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ch ds
bathfu;fjax dkiksZjs'ku fyñ fHkykbZ ,eñihñ ds izca/kra= ds lac)
fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd
fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;]
tcyiqj ds iapkV ¼lanHkZ la[;k 300 @ 1997½ izdkf'kr djrh gS tks
dsUnzh; ljdkj dks 23@9@2013 dks izkIr gqvk FkkA
[lañ ,y&29011@17@97&vkbZ vkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2306.—In pursuance of section 17 of the
Indusutrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 300/97)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s Beekay Engineering Corporation Ltd.,
Bhilai (MP) and their workman, which was received by the
Central Government on 23/9/2013.
[No. L-29011/17/97-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JABALPUR
NO. CGIT/LC/R/300/97
PRESIDING OFFICER: SHRI R.B PATLE
Hindustan Steel Employees Union,
Bhilai, Affiliated to CITU,
Branch Dalli-Rajhara,
Distt. Durg
....Workman/Union
Versus
M/s. Beekay Engineering Corporation Ltd.,
45/47, Industrial Estate,
Bhilai (MP)
....Management
Á W A R D
Passed on this 26th day of July, 2013
1. As per letter dated 21-10-97 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section - 10 of I.D. Act, 1947 as per Notification
No. L-29011/17/97-IR (Misc). The dispute under reference
relates to:
Whether the action of the management of
M/s. Beekay Engineering Corporation a contractor
of I.O.C. of Bhilai Steel Plant in refusing employment
to Shri Ketu Ram and 45 other (as per list enclosed)
w.e.f. 20-1-96 is lawful and justified. If not, to what
relief the workmen are entitlted to?
2. 1st party Union is challenging refusal of
employment to Shri Ketu Ram and 45 others in the dispute
under reference. Even after issuing notices, the Union did
not participate in the proceeding, no statement of claim is
field. On 16-2-2010, case proceeded for filing Written
Statement by management.
3. IInd party management also not filed Written
Statement. From conduct of the parties, it is clear that the
parties are not pursuing or participating in the dispute.
4. In the result, award is passed as under:-
"Reference is disposed off as No Dispute Award".
R.B. PATLE, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2307-—vkS|ksfxd fookn vf/kfu;e 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ eyat[kaM
dkWij izkstDV ftyk ckyk?kkV ds izca/kra= ds lac) fu;kstdksa vkSj
muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;y;] tcyiqj ds iapkV
¼lanHkZ la[;k 112 @ 87½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks
23@9@2013 dks izkIr gqvk FkkA
[lañ ,y&43012@37@85&Mh- III ¼ch½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2307.—In pursuance of section 17 of the
Indusutrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 112/87)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s Malanjkhand Cooper Project, District
(Balaghat) and their workman, which was received by the
Central Government on 23/9/2013.
[No. L-43012/37/85-D.III (B)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, JABALPUR
NO: CGIT/LC/R/112/87
PRESIDING OFFICER: SHRI R.B. PATLE
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6133
The President,
Bhartiya Khanij Mazdoor Sangh (BMS),
PO Malanjkhand,
Distt. Balaghat
....Workman/Union
Versus
The Deputy General Manager, (P&A),
Malanjkhand Copper Project,
PO Malanjkhand,
Distt. Balaghat
AWARD
Passed on this 8th day of July, 2013
1. As per letter dated 14-7-87 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-43012/
37/87-D. III(B). The dispute under reference relates to:
2. ''Whether the action of the management of
Malanjkhand Copper Project PO Malanjkhand, Distt.
Balaghat in putting Shri P.K. Gupta, Compounder to the
minimum of the scale, stopping his two yearly increments
and cautioning him is justified? If not, to what relief the
concerned workman is entitled?"
3. After receiving reference, notices were issued to
the parties. Perusal of record shows that Union filed reply
on 23-8-88. The statement of claim by management if filed
at Page 4/1 to 4/3. The case of IInd party as per the Written
Statement is that objection is raised that the reference is
not tenable under I.D. Act. Dispute between parties relates
to the minimum punishment imposed on workman working
as Compounder. That the concerned workman is not an
employee under I.D. Act. Union has no right to take the
dispute. The reference is not tenable. It also prayed
opportunity to proving misconduct if the enquiry
conducted against workman is found illegal. That the Ist
party workman was employed as compounder. He was
found involved in unauthorized sale of medicines to retain
incentive medicine and theft of the medicines of the
Company's hospital. Chargesheet was issued to the
workman in addition to committing theft, pilferage, breach
of trust, dishonesty, fraud and willful negligence, taking
illegal gratification, misappropriation etc. the workman
replied the chargesheet. The Competent Authority decided
to hold enquiry against him. Enquiry Officer was appointed.
Delinquent Shri P.K. Gupta was given opportunity to defend
himself.
He was allowed to cross-examine the witnesses and
examine his own witness. That enquiry was properly
conducted. Workman was found guilty of the charges
considering the report of the Enquiry Officer and the
material submitted with report. Considering the gravity of
charges, minor punishment was imposed. Leniency was
shown. The punishment imposed is legal. IInd party prayed
for rejection of claim.
Workman/Union filed reply at Page 10/1 to 10/8. It is
submitted that the objection raised by Ist party about the
order of reference is not proper and bonafide. That the job
evaluation of workman of Malajkhand Copper Project has
been done in two instalments. In first instalment, job
evaluation of the technical workers have been done and
in the second instalment the same of the para medical and
clerical workers was done. In IInd instalment, job evaluation
of compounder has been included as workman and given
all benefits. It is contented that the reference is not bad. It
needs to be adjudicated by this Tribunal. Workman/ Union
being aggrieved by the punishment, whatsoever may be
its quantum, they have right to challenge by raising the
dispute. As per Section 11-A, if not opportunity is given
such enquiry found illegal is liable to be quashed. No
enquiry was made before awarding punishment. Therefore
it deserves to be quashed. The management is trying to
unnecessary complicate the matter raising superfluous and
unjustified objection as the dispute is referred to this
Tribunal by appropriate Government needs to be
adjudicated.
4. It is further submitted that Shri P.K. Gupta is
permanent employee of Malajkhand Copper Project. His
Code No. is 600. He was working as Compounder. There is
a store attached to the hospital of the MCP and medicines
are kept therein, Duties of compounder are well laid down.
The workman in question as a compounder is expected to
do his normal duties of compounder. Compounder is not
expected to lookafter the duties of store keeper. When any
employee is ordered to do any other duty other than his
prescribed duty, order is given in writing to avoid and
apprehension in future.
5. Medical officer in hospital has unauthorisely
ordered Shri P.K. Gupta to look after the work of hospital
store. It was not part of his duty as compounder. The person
giving the order was not competent to give such oral orders.
It is illegal. The employee cannot be charge of any
misconduct if he commits some mistake in doing their duty
because allotment of duty is illegal. Shri P.K. Gupta vide
chargesheet dated 10-7-82 was called upon to reply 4
charges levelled against him in respect of his so called
duty of looking after the store keeping and purchasing of
medicine, duties illegally allotted to him. Chargesheet was
issued by Dy. General Manager (P&A) who was not
competent authority to punish him. The substance of
allegations against him were (a) that he exported and
obtained commission @ 2% for purchase of medicines from
M/s. Nathmal Hukumchand Kankariya of Balaghat and
M/s. M.P. Medical Store Balaghat, (b) after purchasing a
packet of medicine for MCP Hospital from M/s. Hathmal
Hukumchand Kankarya, offered the same packet to the
said shopkeeper to keep it in his shop for sale, (c) such
activities were committed and selling company medicines
to the firms in order to earn wrongful gain for himself and
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THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
cause loss to the company, (d) attempted to cause
disadvantage to the company and undue advantage to
himself by accepting medicines from firm under the incentive
scheme, (e) on stock verification on 1-7-82, some medicines
were found in excess and some in short and huge quantity
of medicines were found unaccounted in the store.
6. The charges against the delinquent employee were
about (i) theft, fraud, breach of trust and dishonesty, (ii)
willful negligence, (iii) Taking and attemption to take illegal
gratification, (iv) Mis-appropriation and commission of acts,
causing loss to the company. All the charges were denied
by the deliquent employee. Enquiry officer held the charge
of negligence in duties and store keeper was proved. That
charge of committing theft of medicines from store, Enquiry
Officer observed said charge was proved. Enquiry Officer
had also observed that the packet of medicines were kept
in the outer counter and same were surrendered to
Shri Kaul Vigilance officer during preliminary enquiry. That
the DGMPA referred the enquiry report to the Executive
Director who disagreed with the findings of the Enquiry
Officer and held all charges proved and directed
punishment against the delinquent. Vide order dated 23-7-
83, the Dy. General Manager (P&A) without making any
reference to the directions of the Executive Director issued
the order of punishment. The pay of delinquent was reduced
to the minimum of the scale regarding frist two charges, (2)
stoppage of 2 yearly increaments without cumulative effect
for other two charges, (3) warning that repetition of such
and similar mistake shall be very seriously viewed in future,
(iv) though suspension order was revoked with immediate
effect and nothing was mentioned about no treating the
suspension period on duty and payment of full pay during
the suspension period.
7. Ist party submits that enquiry officer rightly
observed in para-2 of his report that because the delinquent
was not given any opportunity to corss-examine these
persons, the delinquent could not be punished on the hear
say evidence. That there is no written order by the
Competent Authority to work as store keeper in addition to
his duties as compounder. That the competent authority
to punish the delinquent was the Executive Director. No
theft could have committed by the delinquent when he has
stated that materials were kept in rack of the outside counter
and produced before the Vigilence Officer. It is submitted
that the statement of Miss Rosamma Joseph, Lab
Technician could not be relief as her statement is false. On
such ground, Ist party prayed that the order of punishment
is illegal. It deserves to be set aside.
8. Considering pendings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below:-
(i) Whether the action of the
In Affirmative
management of Malanjkhand
Copper. Project PO Malanjkhand,
Distt. Balaghat inputting, Shri P.K.
Gupta, Compounder to the
minimum of the scale, stopping his
two yearly increments and
cautioning him is legal?
(ii) if so, what relief the workman
Relief prayed by
is entitled to
workman is rejected.
REASONS
9. Though legality of punishment imposed against
Shri P.K. Gupta is challenged by the Union, no evidence is
adduced by Union to substantiate his claim. The evidence
of Union was closed on 13-7-05. The perusal of record
shows that case was frequently adjourned for exparte
evidence of management form 19-10-05 to 1-3-2013. The
management did not adduce any evidence. Thus both
parties failed to participated in the reference proceeding.
Form pleadings on record, it appears that legality of enquiry
proceeding was contended by the management and it was
denied by the Union. However as parties failed to adduce
evidence, dispute between parties cannot be decided
without evidence. Therefore as parties failed to participate
in proceeding, I hold my finding in Point No. 1 in Affirmative
as Ist party failed to establish his contention.
10. In the result, award is passed as under:—
1. The action of the management of Malanjkhand
Copper Project PO Malanjkhand, Distt. Balaghat inputting
Shri P.K. Gupta, Compounder to the minimum of the scale,
stopping his two yearly increments and cautioning him is legal.
2. Relief prayed by Wrokman is rejected.
R. B. PATLE, Presiding Officer
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New Delhi, the 24th September, 2013
S.O. 2308.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6135
Government hereby publishes the Award (Ref. No. 144/87)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s. Cement Corporation of India, District
(Raipur) and their workman, which was received by the
Central Government on 02.08.2013.
[No. L-29011/18/84-D. III(B)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
NO. CGIT/LC/R/144/87
Presiding Officer: Shri R. B. PATLE
General Secretary,
Cement Awam Khadan Kamgar Sangh (BMS),
PO Mandhar Cement Factory,
Distt. Raipur (MP)
...Workman/Union
Versus
General Manager,
Cement Corporation of India,
PO Mandhar Cement Factory,
Distt. Raipur
...Management
AWARD
Passed on this 17th day of May 2013
1. As per letter dated 14-8-1987 by the Government
of India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No.L-29011/
18/84-D.III(B). The dispute under reference relates to:
"Whether the action of the management of Cement
Corporation of India Ltd. in retrenching their
workmen employed through their contractors M/s
Ahuja Constyruction and M/s Anil Transport Co.
without following the provisions of I.D. Act and Rules
and debarring the workman from payment of wages
and other benefits in terms of Cement Wage Award,
1983 is justified? If not, to what relief the workmen
are entitled?"
2. After receiving reference, notice were issued to
the parties. Ist party General Secretary of Cement Awam
Khadan Kamgar Sangh (BMS) Mr. S.N. Prasad filed
statement of claim at Page 3/1 to 3/3 of the record. The
Case of the Ist party workman is that the retrenched
workman as shown in list Annexure-A were workmen of
Cement Corporation of India, Mandhar Cement Factory,
Pathri Mines i.e. IInd party. That various contractors were
changed from time to time during the period 1977-78 till the
date of retrenchment of labour. That the retrenched
workman were always putting their demands to the Principal
Employer i.e. Cement Corporation of India Ltd., Cement
Factory and their respective contractors. They were
requesting wages and other benefits as per Cement Wage
Board Award 1983. Their demands were deliberately denied
by the Principal Employer and contractors. The retrenched
workmen were not paid minimum wages and other benefits
as per Cement Wage Board Award time to time.
3. It is further submitted that the retrenched workman
are regular workman of Cement Corporation of India Ltd.,
Cement Factory—Principal Employer. They were working
in Pathri Mines from 1977-78 under various contractors of
IInd party. The nature of work is regular process/permanent
nature of job which is directly connected with production
of cement. However to escape from responsibility to
regularize/departmentalize the labourers the principal
employer deliberately kept the labourers through
contractors. The said act of the IInd party is in violation of
Cement Wage Board Award 1983 and rules of Government
of India.
4. The Captive Mines of Cement Corporation of India
Ltd., Mandhar Cement Factory, Pathri Mines is within
10 Kms. distance from the Bank. As per provisions of
Cement Wage Board Award, 1983, to be implemented for
Pathri Mines Labours. However to exploit labours, IInd
party CCI, Mandhar Cement Factory management
intentionally violated the said award and the rules. Despite
of various letters of demand to the Principal Employer at
contractor, Asstt. Labour Commissioner and other
authorities, no attention was paid. The dispute raised by
retrenched workman during their service period were
violated. The retrenched employees lodged their claims
under Section 33(C) (2) of I.D.Act, 1947 for arrears of Cement
Wage Board Award 1983 for the base 1982-83 and 83-84.
The Principal Employer IInd party was irritated because of
filing of proceeding. The machines were used instead of
labour and the imployees were retrenched causing them
unemployed.
5. That Principal Employer or the contractors not
followed the procedure for retrenchment of the workman
provided under Section 25-F, G, H of the I.D. Act. The
retrenchment of workman is illegal. Rather it is alleged to
be act of victimization by the employer.
6. It is further contented that illegal change by
reducing strength of labours, use of machines at Mines.
Secondly the labours are retrenched. It is nothing but
denial of justice to the poor labours by management. That
due to illegal retrenchment, the labours are denied wages,
benefits under Wage Board Award 1983. That Principal
Employer is solely responsible for payment of wages and
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THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
other benefits to the retrenched labours. That the cases
relating to the payment of arrears are pending before this
Tribunal. The management of IInd party and the contractors
are party to said proceedings. During pendency of said
proceeding, service conditions of labours cannot be
changed without permission of Labour Court, no such
permission was obtained by management or contractors
for retrenchment. Therefore it is alleged that the
retrenchment is illegal. It is an malafide act and victimization
on above pleadings. Ist party Union prays for reinstatement
of retrenched labours, wage benefits as per Cement Wage
Board Award 1983 from Principal Employer, Mandhar
Cement Factory from date of retrenchment till decision of
the matter.
7. List Annexure-A shown names of 109 retrenched
employees of M/s Ahuja Contractor and names of 164
retrenched labours of M/s Anil Transport company, names
of 33 retrenched employees of M/s Vardhman Construction
Company, CCI Ltd. Mandhar Cement Factory, Pathri Mines.
8. IInd party management filed Written Statement at
page 4/2 to 4/6 of the record. IInd party submitted
preliminary objection that is has not passed any order for
retrenchment of the labours. Therefore it is not possible
for me to offer any justification for passing such order.
That the order of reference passed by Central Govt. is of
erroneous assumption. The names of the retrenched
employees are not appearing in the order of reference. That
employees were not in effective control of the IInd party.
The contractors were in effective control and pay musters
of the employees. The contractor along could engage and
terminate service of the employees. Therefore the liability
cannot be fastened on the IInd party as there is no
relationship of employer and employee. That the dispute
between parties has not been reflected in the order of
reference. The reference is ultra...... on the part of Central
Government, no adjudication proceeding can therefore take
place in respect of the reference.
9. That as per the recitals of the reference order,
industrial dispute exists between the parties. However the
order of reference does not disclose the names of persons
alleged to have been retrenched. In absence of their names
in reference, there cannot be adjudication. The names of
contractors are not arrayed as party in the reference.
Therefore this Tribunal is precluded from adjudication of
dispute about relationship of employer and employee. The
reference in present form is imperfect, improper and contrary
to the facts and law. Therefore no adjudication shall remain.
10. On merit, IInd party submits that IInd party had
awarded contracts to various contractors for work at Parthi
Mines of Mandhar Cement Factory. IInd party did not
retrench any labour. IInd party was claiming that the labours
supplied by the contractors were paid wages as per the
rules and regulations payment of Wages Act, Minimum
Wages Act. It is further submitted that the labours engaged
by contractor are migratory in nature. There was no occasion
for management to retrench any employees. The retrenched
employees were never engaged by IInd party. It is denied
that those employees were regular workman of IInd party.
That time to time settlements were raised between contract
labours and contractors before the authorities. It is not
disputed that application under Section 33(C)(2) of I.D.
Act, 1947 is pending for adjudication. It is submitted that
said applications were dismissed on 19-11-84 consequent
to settlement arrived between labours and contractors
before ALC(C).
11. IInd party admits that it had taken policy decision
to mechanized mine work. It denies that any procedure was
required to be followed by the IInd party. It is denied that
alleged retrenched workman shown in para-6 of the
Statement of Claim any procedure was required to be
followed for retrenchment by the IInd party. It is denied
that any procedure relating to Payment of Wages Act is
pending. It is submitted that prayers made on behalf of
alleged retrenched workman is wrong. IInd party
management prays for rejection of the demands.
12. 1st party workman submitted rejoinder at Page
5/1 to 5/5. 1st party submits that as per decisions of the
Hon'ble Supreme Court and High Courts, the Principal
Employer is the employer of the contract labours also. The
contractor has no independent entity. That IInd party CCI,
Mandhar Cement Factory is Principal Employer of the
retrenched labours. Retrenched labours were regularly
engaged through various contractors by IInd party during
the period 1977-78. The contractors were changed but
labours were not changed till their retrenchment. The work
is of regular nature such as packing house loading and
unloading contract labours and coal, gypsum (Raw Material
Handling) contract labourers. Contract Labours were paid
wages and other all benefits as per provisions of Cement
Wage Board Award 1983. There work load has been fixed in
comparison of minimum wages under said award. The
nature of mines work is of regular process and work is of
permanent nature directly related with production of
cement. In order to avoid benefit of award, management of
IInd party, retrenched labours. The labours were
deliberately kept under contractor. IInd party CCI Ltd. at
Mandhar Cement Factory are responsible for illegal
retrenchment. That the contractors are only medium for
exploitation of the workmen.
13. It is submitted that CCI, Mandhar Cement Factory
is situated within 10 Kms. from Factory. As per provisions
of Cement Wage Board Award 1983, the award should be
implemented in captive mines situated within the said
distance for the contract labours also. The management of
IInd party did not implement the same Wage Board Award.
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6137
The labours gave 7 points charter of demands of IInd party.
The IInd party and Cement Contractors had lodged claim
for payment of minimum wages as per said award. In order
to take revenge, the Pathri Mine was mechanized. Due to
mechanization, employment of 400 labours were illegally
retrenched. It is alleged that IInd party has made illegal
change by reducing strength of labour.
14. The retrenched labours Pathri Mine has put up
demand for implementation of award. As per letters dated
19-9-83, 26-9-83, 5-10-83, 20-10-83, 26-10-83, 8-11-83, 29-11-
83, 10-12-83 and 8-12-83 to the different authorities, IInd
party and the contractors. However there was no response
to their demands. The retrenched labours lodged their claim
before this Tribunal filing cases 221 to 231 under Section
33(C)(2) of I.D. Act.
15. The Ist party workman reiterated its claim for
reinstatement of retrenched labours and recovery of arrears
of wages as per Cement Wage Board Award 1983.
16. Considering pleadings between parties, my
learned predecessor has framed issues on 30-12-88 which
are as under. My findings are recorded against each of
them for the reasons as below:—
(i)
Whether the persons alleged to have
Retrenched employees were engaged by contractors.
been retrenched were employed by
the contractors named in the terms
of reference?
(ii)
Whether their exists any dispute
In Negative
between CCI and retrenched
workmen?
(iii)
Whether there existed any relationship
The relationship between retrenched e mployees is
of employer and employee between
only towards employed by contractor as provided
the parties as per terms of reference?
under Section 21 of Contract Labour (Regulation &
Abolition) Act, 1970.
(iv)
Whether the action of the management
Management of IInd party has not retrenched the
of Cement Corporation of India Ltd.
employees employed by contractors.
in retrenching their workmen employed
through their contractors M/s. Ahuja
Construction and M/s. Anil Transport
Co. without following the provisions
of I.D. Act and Rules?
(v)
Whether debarring the workmen
Employees have not been debarred from claiming
from payment of wages and other
wages as per Cement Wage Award 1983
benefits in terms of Cement Wage
Award 1983 is justified?
(vi)
Costs and Relief.
Relief prayed by Ist party/retrenched employees is
rejected.
REASONS
17. Issue No. 1 to 3:—
Issue No. 1 pertains to whether the persons alleged
to have been retrenched were engaged by contractors.
The statement of claim submitted by Ist party Union shows
three lists of 109 employees working with Ahuja contractor
and 164 employees working with M/s Anil Transport, 30
employees working with M/s Vardhman contractors.
However in the statement of claim, the employees claims
that the contractors were changing. The labours remained
same. The labours were doing the work connected with
production. 1st party Union filed affidavit of labours
Fekuram Verma, Manmodhi Mehtar, Ratiram Nishad,
Dhanau Verma. Dhalsingh Sahu, Khorbahara Verma, Shyam
Rattan Satnami, Mahesh Sahu and Naresh Verma. All of
them have stated in their affidavit that since 1977-78, in
February 1984 they were working in the Mine. That they
were considering CCI as their employer as they could not
be removed by contractor without order of CCI. In their
cross-examination, they have stated identically that they
were working with different contractors. First contractor
was Akhraj Company,next was Karamal, thereafter
Nemichand. Then Balmukund, then Ahuja then Jairam,
Naharji ad Ashok and Anil. All these witnesses are stating
that they were working through contractors. The Secretary
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THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
of the Union Shri S.N. Prasad filed his affidavit. He has
stated that the contractors did not pay wages as per Wage
Board Award 1983 despite of repeated requests and
representations. In his cross-examination, Mr. Prasad
Secretary of the Union says that management has not given
any appointment letter to the workers. Mine supervisor of
the management and also the contractor supervisor used
to remain present at time of payment of the workers. The
supervisors of lower cadre of management along with
contractor supervisor used to supervise the work. Mining
Supervisor or Foreman or Time Mining Engineer used to
supervise the workers. The affidavits filed by management
witness Ram Mitra Pandey, Suresh Prasad Tiwari, Rajendra
Kumar Gupta and C.B. Agrawal have also stated the workers
were engaged by contractors.
18. Section 21 of Contract Labour (Regulation and
Abolition) Act, 1970 provides—
"(i)
A contractor shall be responsible for payment
of wages to each worker employed by him as
contract labour and such wages shall be paid
before the expiry of such period as may be
prescribed.
(ii)
Every principal employer shall nominate a
representative duly authorized by him to be
present at the time of disbursement of wages
by the contractor and it shall be the duty of
such representative to certify the amounts paid
as wages in such manner as may be prescribed.
(iii)
It shall be the duty of the contractor to ensure
the disbursement of wages in the presence of
the authorized representative of the principal
employer.
(iv)
In case the contractor fails to make payment of
wages within the prescribed period or makes
short payment, then the principal employer
shall be liable to make payment of wages in full
or the unpaid balance due, as the case may be,
to the contract labour employed by the
contractor and recover the amount so paid from
the contractor either by deduction from any
amount payable to the contractor under any
contract or as a debt payable by the
contractor."
19. From evidence discussed above and Section 21
of the Contract Labour (Regulation and Abolition) Act,
1970 verbatim reproduced above, it is clear that that the
retrenched employee shown in all the three sheets annexed
with the statement of claim were employed by the
contractors except the Principal employer i.e. IInd party
was concerned only to supervise the payment of wages
and in case of non-payment or short payment of wages to
make it good and pay same to the contractors labours.
There is no relationship of employer and employee between
the IInd party CCI and the retrenched employees engaged
by the contractors. For above reasons, I accordingly record
my finding on Point No. 1 & 3 and Point No. 2 in Negative.
20. Point No. 4 & 5—
Issue No. 4 covers the controversy between parties
whether the action of the management of CCI in retrenching
the workman employed through contractors Ahuja
Construction, M/s Anil Transport is without following
provisions of I.D. Act. As contented in its Written
Statement, IInd party has submitted that M/s Ahuja
Construction and Anil Transport are not made party as per
the terms of reference. The names of employees are not
shown in the reference made by the Central Government. It
is, therefore, submitted that in its absence, the reference
cannot be decided by this Tribunal. The reference made by
Central Government finds reference to the employees
retrenched through Contractors M/s Ahuja Construction
and M/s Anil Transport Co. the names of the employees
are disclosed in the annexure submitted along with
statement of claim. Ahuja Construction and Anil Transport
Company are not shown parties to the dispute under
reference.
21. However the evidence of the witnesses on
affidavit submitted by Ist party Union is on the point that
the retrenched employees were working from 1977-78 till
February, 1984 through contractors. That they were not
paid wages as per Cement Wage Board Award 1983. That
they were doing the work of digging stones used for
production of cement. When they claim wages as per
Cement Wage Board Award 1983, IInd party mechanized
the mines. After retrenchment they are rendered
unemployed. The evidence in cross-examination of witness
Manmodhi Mehtar says that Shri Ashok and Anil were last
contractor when they were working. He was stopped from
work in 1984, he was not given notice. He stopped from
working by contractor. Ratiram in his cross-examination
says that he was employed by Shri Aharaj and stopped
working in 1984. The contractor used to pay his wages. He
claims ignorance about his relation between the Union and
the management of IInd party. Witness Dhannu Verma in
his cross-examination says that he was working in Pathri
Mines from 77-78. He was given to understand he was
working under supervision of CCI. The contractors were
changed. Last contractor was Ahuja Transport. Wages were
paid to him by contractor. Contractor has not stopped work
but CCI stopped him from working because the machines
belonging to the company were taken back.
22. Witness Dhal Singh Sahu in his cross-examination
says contractor employed at the instance of CCI. He did
not recollect the name of Ist contractor. Last was Anil
Transport. He was paid by CCI through supervisor of
contractor. He was stopped working from February. 1984.
Similar statement is given by other witnesses Khorbahara
Verma, Shyamrattan Satnami and Naresh Verma. Secretary
of the Union Shri S.N. Prasad in his cross-examination says
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6139
that 7 points of demands were raised before management.
Contractor was given copy of demand. M/s Ahuja
Construction, Anil Transportation were in the year 1982-
83. He made statement on the basis of perusal of record. As
per document Exhibit M-1, Anil Transport worked for
development of cities meaning removal of overburden. After
the machine were deployed, workman were stopped. In his
further cross- examination, this witness says that he has
no evidence to show that contractor had given notice that
they shall make payment according to Wage Board Award
1983. The notice was displayed on notice board. He denies
that distance between Pathri Mines and Factory is 11 Kms.
According to him, the distance is 8 kms. That he has not
maintained record except the records of workers during
relevant period working with the contractors. A note is to
be taken that in his cross-examination, Para-16 says that he
had given details of workman in application under Section
33(C)(2) and not in this case. I will discuss the evidence of
management's witnesses at later part of the judgment.
23. It would be appropriate to first discuss the
documents produced on record. From evidence of
management's witness Shri Parsadiram Verma, Patwari Halka
No. 95, the Map Exhibit W-23 is proved. As per his evidence,
distance between factory and Mandhar Mine is 10.114 Kms.
In his cross-examination, he has shown the points from
which he had carried the measurements. His evidence is
not shattered to disbelieve his testimony. In Exhibit
W-1, 2, 3 the Union had submitted demands for payment of
wages as per Cement Wage Board Award 1983 to contractor
M/s Ahuja Construction and Anil Transportation working
in CCI Mines, Mandhar. Exhibit W-4 produced by 1st party
shows the Union had submitted demand for wages.
Similarly demands were submitted as per document Exhibit
W-5. As per document Exhibit W-6, Anil Transport had
agreed to pay the wages till 5-10-83. As per document Exhibit
W-7 & W-8, the demands for payment of wages were
submitted before ALC for conciliation under different
letters. The demands were also submitted as per Exhibit
W-9 for conciliation. Notice as per Exhibit W-10 was issued.
The ALC had issued notice for conciliation Exhibit W-12,13
& 14.
24. In Exhibit W-19, there is reference that contractors
informed that they were awarded contract for a fixed period
of time which will be expiring on 7-2-84. However they were
ready to pay all the legal dues of the workman as per rules
and regulations. The failure reports in conciliation
proceedings are produced at Exhibit W-20, 21.
25. Documents M-1 is the copy of Agreement Exhibit
M-3 is the tendor form containing different clauses for
payment of wages to the labours engaged by the contractor
and liability of the employer as provided under provisions
of Contract Labour (Regulation and Abolition) Act, 1970.
Management has produced document Exhibit M-4 notice,
copies of wage sheets are produced with Exhibit M-5.
Exhibit M-7 is settlement arrived between Ahuja
Contractors. It was settled to pay Rs. 71,000 towards full
and final settlement. The payment was to be made within
15 days. Union agreed to withdraw the case filed under
Section 33(C)(2) before this Tribunal. The pleadings and
evidence of 1st party Union and evidence of all the
witnesses of 1st party is silent with respect to the said
settlement. Copy of Cement Wage Board Award, 1983 is
produced on record finds clear refers that benefit is also
extended to contract labour as per demand No. 219. The
coverage area of the concerned wage board award is 10
Kms. distance as per discussion in para 73 of the Wage
Board Award. As per para 50 of the award, the Wage Board
has made it clear that the recommendation would apply to
workers who are engaged by contractors where such
employees are on construction work and purely connected
with production.
26. The evidence of management witness Shri
Rajendra Gupta deals with the Tripartite settlement dated
16-10-84 before ALC(C). Agreements were signed between
the Union and M/s Anil Transport Company. Payment made
by contractors of workman were through payment sheet
Exhibit M-5, 6. Exhibit M-8 is the settlement dated 9-4-84.
Exhibit M-7 is settlement between the Union and
management of Anil Transport. Evidence on above point
is not shattered in cross-examination. The witness in his
cross-examination says that the supervisors of management
was remaining present at the time of payment of wages to
contract labours. Shri C.B. Agrawal management witness
in his evidence also stated that the supervisor of contractor
and the representative of the management used to remain
present at the time of payments to the contract labour.
That Parthi Mine is situated at a distance of 11 Kms. from
Factory. He admits that representative of management was
remaining preset at the time of payment to contract labours.
In his cross-examination, he submits that distance between
factory and the mine is more than 11 Kms. Their evidence
is corroborated from evidence of Shri Parsadiram Verma,
Patwari Halka No. 95 and the Map Exhibit W-23. From
document Exhibit M-7, it is clear that the proceeding under
Section 33(C)(2) for recovery of wages as per Cement Wage
Board Award, 1983 were filed. The copy of judgment of
proceedings under Section 33(C)(2) are not produced.
During course of argument, it was given to understand
that those proceedings were rejected long back. Though
there is no pleading about resjudicata in this case but once
the claim of the contractors was for payment of wages as
per Wage Board Award was not allowed. As per settlement
Exhibit M-7, the claim was settled before ALC and it was
agreed to withdraw these cases. The claim of 1st party
cannot be entertained. In notes of argument submitted on
behalf of Union has not explained the point how their claim
for wages as per Cement Wage Board Award 1983 is
tenable, even after settlement Exhibit M-7 and Union, it
was agreed to withdraw the cases under Section 33(C)(2).
The pleadings and evidence of Union is silent with respect
to the judgments in those proceedings. For the above
6140
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
reasons, the claim of 1st party for wages as per Cement
Wage Board Award 1983 cannot be accepted against IInd
party Principal employer. The contractors M/s. Ahuja
Transport and M/s. Anil Transport are not joined as parties.
There is no evidence as to how much amount as per
settlement Exhibit M-7 was paid or how much amount
remained unpaid. The liability cannot be fastened for its
payment on the Principal Employer i.e. IInd party.
27. With respect to the contentions of the Union that
machines were employed to render contractors employees
jobless, the change is alleged to be illegal. The present
reference does not clearly refer to illegal change, rather the
employees shown in the list annexed with statement of
claim are not regular employees of the IInd party
management. They are shown employees of the contractor.
Section 9-A of I.D. Act provides for 21 days notice for
change does not cover change with respect to the services
of the labours engaged by the contractors.
28. So far as legal position with respect to employees
engaged through contractor, the renewal of licence is
produced on record. The liability of the Principal Employer
is restricted to the points covered under Section 21(2), (4)
of Contract Labour (Regulation and Abolition) Act, 1970.
The employees engaged by the contractor for the work
assigned under Contract cannot be said employees of the
Principal Employer. Their services cannot be terminated by
Principal Employer. The evidence in this case also does
not show that the contractors employees shown in the list
annexed with statement of claim were retrenched by the
Principal Employer. M/s. Ahuja Construction and Anil
Transportation are not made parties. Therefore in absence
of the se-contractor, it cannot be held that the alleged
retrenchment of the contractors employees is in violation
of Section 25-F,G of I.D. Act. For above reasons, I record
my finding on Point No. 4 & 5 in Negative.
29. In the result, award is passed as under:—
"The reference is answered in favour of the
management. The claim of the 1st party Union is
rejected."
R.B. PATLE, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2309-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ ,eñ ihñ
LVsV ekbfuax dkiksZjs'ku ftyk fcykliqj ds izca/kra= ds lac) fu;kstdksa
vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa
dsUnzh; ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds
iapkV ¼lanHkZ la[;k 159@93½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj
dks 23@9@2013 dks izkIr gqvk Fkk A
[lañ ,y&29012@53@92&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2309.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the Award (Ref. No. 159/93)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s M.P. State Mining Corporation, District
(Bilaspur) and their workman, which was received by the
Central Government on 23/9/2013.
[No. L-29012/53/92-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL -CUM-LABOUR COURT,
JABALAPUR
NO. CGIT/LC/R/159/93
Presiding Officer: SHRI R.B. PATLE
General Secretary,
M.P. Koyla Swatntra Mazdoor Sangthan,
Baradwar, PO Baradwar,
Distt. Bilaspur
....Workman/Union
Versus
Deputy General Manager (Mines),
M.P. State Mining Corporation,
Sub Office-Baradwar, PO Baradwar,
Distt. Bilaspur.
....Management
AWARD
Passed on this 23rd day of July, 2013
As per letter dated 19.8.93 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
Section-10 of I.D. Act, 1947 as per Notification No. L-29012/
53/92-IR(Misc). The dispute under reference relates to:
"Whether the action of the management of M.P. State
Mining Corporation Ltd. justified in not regularizing
S/Shri Babulal Yadav, Jageshwar Singh and Har
Narayan Singh as Lower Division Clerks w.e.f.
10.10.84"
2. After receiving reference, notices were issued to
the parties. Ist party submitted Statement of claim at page
4/1 to 4/2. The case of workman is that he was appointed
on post of LDC on 9.8.93. That their initial appointment
was as office helper. The dates of their appointment are
29.9.75, 1.2.77, 16.12.77, they were regularized as Office
Asstt. from 1.3.84 to 18.10.84, 19.10.84 in pay scale of
Rs. 485-740. The workman Babulal Yadav has passed High
Secondary Examination in 1975, workman Jageshwar Singh
passed Higher Secondary in 1982 and workman Harnarayan
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6141
Singh passed in 1981. That as per order dated 2.3.89, they
were appointed in pay scale of Rs. 870-1420. That Ist party
workman No. 1 to 3 were promoted. The workman No. 2
was appointed in September 93 after long delay as LDC. It
is further submitted that because of delay in his
appointment, Ist party workman suffered financial loss of
Rs. 51,000, 41,000 respectively. On such ground, Ist party
workman prays for regularization of their service.
3. IInd party filed Written Statement at Page 13/1. It
is submitted that the dispute was referred in 1993. In the
year 2000, the Mining Corporation of MP was reconstituted
after division of State of MP and Chhattisgarh. The Mining
Corporation Chhattisgarh is not concerned with the dispute.
The dispute relates to M.P. State Mining Corporation. MP
Mining corporation has not filed Written Statement even
after service of notice. The reference is proceeded exparte.
4. Ist Party workman 1 to 3 are claiming regularization
on the post of LDC w.e.f. 10.10.84. However workman
proceeded exparte on 26.8.05. No evidence is adduced by
workman. The MP Mining Corporation has also filed
Written Statement, no evidence is filed. Thus both parties
failed to participate in the reference proceeding. Therefore
both parties failed to participate in the reference proceeding
therefore no dispute award needs to be passed.
Accordingly the award is passed as under:—
"As parties failed to participate in reference
proceeding, no dispute award is passed."
R. B. PATLE, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2310-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ eSxuht
vksj bafM;k fyñ] ukxiqj ds izca/kra= ds lac) fu;kstdksa vkSj muds
deZdkjksa ds chp vuqca/k esa fufnZ"V vkS|ksfxd fookn esa dsUnzh;
ljdkj vkS|ksfxd vf/kdj.k ,oa Je U;k;ky;] tcyiqj ds iapkV
¼lanHkZ la[;k 63@2000½ izdkf'kr djrh gS tks dsUnzh; ljdkj dks
23@9@2013 dks izkIr gqvk FkkA
[lañ ,y&27012@4@99&vkbZvkj ¼,e½]
tksgu rksiuks] voj lfpo
New Delhi, the 24th September, 2013
S.O. 2310.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 63/2000)
of the Central Government Industrial Tribunal/Labour
Court, Jabalpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s. Manganese Ore India Ltd., Nagpur
and their workman, which was received by the Central
Government on 23.9.2013.
[No. L-27012/4/99-IR(M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE THE CENTRAL GOVERNMENT
INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,
JABALPUR
No. CGIT/LC/R/63/2000
Presiding Officer : Shri R. B. PATLE
General Secretary,
Republican Mazdoor Sangathan,
Manganese Mines, Bharveli,
Distt. Balaghat
....Workman/Union
Versus
The Chairman-cum-Managing Director,
M/s. Manganese Ore India Ltd.,
3, Mount Road Extention,
Nagpur
....Management
AWARD
Passed on this 17th day of July 2013
1. As per letter dated 6.3.2000 by the Government of
India, Ministry of Labour, New Delhi, the reference is
received. The reference is made to this Tribunal under
section-10 of I.D. Act, 1947 as per Notification No. L-27012/
4/99-IR (Misc). The dispute under reference relates to:
"Whether the demand raised by Shri Sevakram and
20 other against the management of Manganese Ore (India)
Ltd. vide their representation dated 17.3.99 (Annexure I) is
justified? If not, to what relief the concerned workmen are
entitled?"
2. After receiving reference, notices were issued to
the parties. Ist party Union filed statement of claim at Page
3/1 to 3/4. The case of Ist party Union is that management
issued orders dated 3.8.98 appointing certain workmen as
Fieldman. Accordingly 21 members of the Union were
appointed to the post of Fieldman by management of IInd
party.
All those workmen were appointed on probation.
During the probation period, they were working with
honesty, integrity, efficiently. That considering their past
service record and devotion towards duty, they were
appointed by the management as Fieldman. On 14-2-99,
they received intimation that their appointment as Fieldman
was wrongly made. The management had reviewed their
appointments and several discrepancies and mistakes were
found in the matter of their appointment. Therefore their
appointment as Fieldman were cancelled. All those 21
workmen were sent to their original status of piece rated
workers. It was also communicated to another panel of 21
persons/workmen recommended for appointment as
Fieldman. The intimation dated 14-2-99, it was noticed that
6142
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
21 persons appointed on adhoc basis. Their order of
appointment was clean. There was no condition of
appointment on adhoc basis. The communication dated
14-2-99 did not find reference of appointment on probation
as mentioned in their order of appointments. That said
communication did not disclosed reasons or ground for
review of their appointments. Error was committed. That all
those 21 persons were appointed after following procedure
following interview for selection.
3. After receiving communication dated 14-2-99, all
those 21 persons submitted several representations, notice
of hungerstrike was given to the authorities but without
any reason. It is claimed that 21 persons have right to be
appointed as Fieldman. They were appointed after following
proper selection process and interview. They were not given
opportunity to put up their defence prior to cancellation of
their appointment as Fieldman. The management has not
given reasons how the earlier selection was wrong. Once
the workman were appointed on post of Fieldman following
proper procedure, they worked satisfactorily. They were
entitled to pay scale for the post of Fieldman. On such
ground, 1st party submits that the reversion of workman
from the post of Fieldman is illegal. All those 21 persons
are entitled to work as Fieldman and consequential benefits
of pay scale.
4. Ilnd party filed Written Statement. at Page 7/1 to
7/9. The claim of 1st party Union is opposed. It is submitted
that MOIL is Government of India Undertaking under
Ministry of Coal. It has introduced rules for Recruitment
and Promotion in 1994 revised w.e.f. 1-8-95. New category
of Fieldman was included as per the recruitment and
promotion rules. 100 % vacancies of Fieldman are to be
filled in through the process of recruitment form amongst
the Piece Rated workers. The internal recruitment is made
on the basis of selection. The details is that regard are not
described in the recruitment rules: The matter was
discussed with recognized Union and bipartite agreement
was finalized. Regarding the marks to be followed in case
of piece rated workers, Seniority= 10 marks, Educational
qualification= 5 marks, performance= 10 marks, attendance
for last 12 months= 15 marks and performance during
interview= 15. marks were to be considered for the selection
of Fieldman. It is submitted that management notified
vacancies of Fieldman at Balaghat Mines. Applications
were invited from piecerated workers. 552 applications were
received, all of them were called for interview, selection
committee was constituted. Selection Committee
recommended 152 candidates for appointment as per the
availability of vacancies, the first 76 candidates were
appointed as fieldman in August 1998.
5. After appointment of those 76 workmen in Balaghat
Mines, complaints were received from employees as well
as recognized Union stating that there have been factual
errors with regard to the data furnished to the Selection
Committee. As a result of that, certain persons really
deserving selection were omitted and certain persons who
were not eligible for selection came to be selected by the
Committee. The recognized Union also served strike notice
on the management on 6-10-98 calling strike for fulfilling
their charter of demands. One of the demand was with
respect to alleged irregularity in selection of Fieldman. After
receiving the strike notice, RLC, Nagpur intervened in the
matter and ceased it in conciliation. The matter was
discussed on 20-5-99 before RLC(C), Nagpur. The
management agreed to issue written communications to all
employee selected and appointed as Fieldman at Balaghat
Mine. The matter was being reviewed about selection and
continuation on the post of Fieldman would be subject to
review. The selection committee was asked review selection
and submit findings. The Committee recommended
selection of only 76 candidates who had been appointed
and the remaining 76 were on the Waiting List.
Subsequently the management also scrapped the remaining
portion of this list.
6. It is further submitted that Selection Committee
reviewed all aspects of the matter, re-considered interview
of all candidates based on corruptive data and submitted
fresh list of candidates for the post of Fieldman. In partial
modification of their earlier recommendations, the new panel
recommended majority of the names from previous list, few
persons from old could not find place in the new list. That
after receiving the recommendations, management decided
to revert Fieldman whose names do not appear in the
greenlist. The employees whose names were recommended
is old and new list were continued on the post of Fieldman.
The management already confirmed their services whose
probation period was found satisfactorily. The Fieldman
whose performance was not found satisfactory during
probation period was extended for six months. The 21
persons whose names were included in the 1st list did not
find their name in the new list of recommendations. Those
post were to be filled from internal recruitment. Out of piece
rated workers, it is reiterated by management that the new
list was submitted by the Conciliation Committee. The
names of those 21 persons were not recommended therefore
they were reverted back to the post of piece rated labour.
All other contentions of workman are denied. IInd party
prays for rejection of the claim of workman.
7. 1st party filed rejoinder at Page 9/1 to 9/2. It is
submitted by workman that according to the bye-laws of
Union, Rashtriya Mazdoor Sangh is operating in the IInd
party. The demand for reference was submitted by the
Republican Mazdoor Sanghan. Such Union is not existing
with IInd party. All other contentions of 1st party union are
reiterated. 1st party submits the record of the persons
concerned with the reference, no variation was found by
the Selection Committee. Mischief was committed by the
Selection Committee at the time of interview. While filing
statement of claim, the Union had already submitted details
¹Hkkx II—[k.M 3(ii)º
Hkkjr dk jkti=k % vDrwcj 26] 2013@dk£rd 4] 1935
6143
of certain persons who have been selected illegally. They
have been wrongly denied promotion. On such grounds,
1st party workman prayed for arrears of their claim.
8. Considering pleadings on record, the points which
arise for my consideration and determination are as under.
My findings are recorded against each of them for the
reasons as below :—
(i)
Whether the demand raised by
Shri Sevakram and 20 others
In Affirmative
against the management of
Manganese Ore ( India) Ltd
vide their representation
dated 17-3-99 (annexure I) is
legal?
(ii) If not, what relief the
Relief prayed by
workman is entitled to?"
Union is rejected.
REASONS
9. Along with letter of reference, Annexure II was
received signed by 21 persons. Annexure I refers to
selection of all those 21 persons by Selection Committee
and appointment orders dated 16-8-98 for the post of
Fieldman. That their appointment order is cancelled, other
21 persons were promoted in their place on recommendation
of the Selection Committee. It is alleged to be matter of
conspiracy. Their promotion right was illegally taken away.
10. Affidavit of evidence of Shri Kanhaiyalal
S/o Udaylal is filed by the 1st party union. He has stated
about his selection by the Committee for the post of
Fieldman. The order was issued for 6 months. He was
reverted to the post of Fieldman. Thereafter the order was
cancelled without giving him opportunity of hearing. The
persons having less educational qualification working as
piecerated employee were selected as Fieldman but details
of such persons are not given in his affidavit of evidence.
Anexure-A is annexed with his affidavit. Name of 21 persons
are shown with remarks about attendance, educational
qualification, seniority but the specific information is not
given about the number of working days, attendance during
the 12 calendar months. In his cross-examination, above
witness says that they have disclosed information in his
affidavit according to his personal knowledge. He was
appointed as piece rated labour. He was member of
Rashtriya Manganese Ore Mazdoor Sangh (INTUC). Such
Union seems to exist 4 years back. That post of Fieldman
was filed by promotion from piece rated worker by Selection
Committee. 76 persons were given order of appointment,
rest were kept in waiting list including those 20 persons
and himself. He claims ignorance about the discussion
before RLC, Nagpur and office bearer of the Union.
Consequently the appointment orders were cancelled. He
says that he had not received any information about the
review of the selection list by Committee. That after
completion of six months of their promotion, the order was
cancelled. As their promotion was not approved, therefore
it was cancelled.
11. Affidavit of evidence is filed by Shri Raju,
S/o Sakroo, Shri Neelkanth S/o Radhelal, Shri Parmanand,
S/o Shri Chandulal, Shri Shersingh S/o Shivlal and
Shri Foolchand S/o Shri Babulal. All the affidavit are
identical to the affidavit of Shri Kanhaiyalal but those
witnesses not made available for cross-examination
therefore their evidence cannot be considered in the matter.
12. Management filed affidavit of evidence of
Shri Nitin Pagnis, Sr. Manager MOIL Hqr. Nagpur. His
affidavit is devoted to the details of the procedure followed
in earlier selection. 10 marks for seniority, 5 marks for
Educational qualification, 10 marks for performance, 15
marks attendance for last 12 months and 15 marks
performance during interview. His affidavit also states that
152 candidates were selected by the Committee, 76 post of
Fieldman were filled. There was waiting list of 76 candidates.
After the appointment, several complaints were received.
Union had given strike notice and selection committee
committed illegalities and selected the candidates for the
post of Fieldman. The names of all 21 workers were not
appearing in the new list therefore they were reverted back
to the post of fieldman. The evidence of management
witness remained unchallenged. He was not cross-examined
by Union. I donot find reason to disbelieve the facts stated
in affidavit. When strike notice was given as per discussion
before RLC, Nagpur, the selection list was reviewed,
interview were held IInd time , 21 persons participated in
the said interview but they were not selected considering
the factors of selection. The grievance of the applicant
cannot be said proper. They participated in the IInd
selection process, they got opportunity for selection IInd
time. Their grievance only after not found selected in the
IInd list is not acceptable. For above reasons, I hold that
demand of 1st party is not legal. Accordingly I record my
finding in Point No. l.
13. In the result, award is passed as under:—
1. The demand for promotion raised by
Shri Sevakram and 20 others against the management of
Manganese Ore ( India) Ltd. vide their representation dated
17-3-99 (Annexure I) is not legal.
2. Relief prayed by Union is rejected.
R. B. PATLE, Presiding Officer
ubZ fnYyh] 24 flrEcj] 2013
dkñvkñ 2311-—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947
dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj eSllZ eSxuht
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6144
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
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New Delhi, the 24th September, 2013
S.O. 2311.—In pursuance of Section 17 of the
Industrial Disputes Act, 1947 (14 of 1947), the Central
Government hereby publishes the award (Ref. No. 35/2008)
of the Central Government Industrial Tribunal/Labour
Court, Nagpur now as shown in the Annexure in the
Industrial Dispute between the employers in relation to the
management of M/s. Magnese Ore (India) Ltd., Distt.
Bhandara and their workman, which was received by the
Central Government on 23.09.2013.
[No. L-27012/1/2008-IR (M)]
JOHAN TOPNO, Under Secy.
ANNEXURE
BEFORE SHRI J.P. CHAND, PRESIDING OFFICER,
CGIT-CUM-LABOUR COURT, NAGPUR
Case No. CGIT/NGP/35/2008
Date: 13.08.2013
Party No. 1
: The Mines Manager,
Manganese Ore (India) Ltd.,
Chikla Mine, Tahsil Tumsar,
Distt. Bhandara.
Party No. 2
: Shri Hanslal Warade
Driver, Chikla Mine, Post:
Chikla, Tahsil-Tumsar,
Distt. Bhandara. (Dead)
Applicants
: (1) Ramdayal S/o. Hanslal Warade
Aged about 21 Years, Occ-Presently Nil,
(2). Smt. Sunita W/o Hanslal Warade
Aged about 42 years, Occ-Household
Both residents of Chikhala Mines,
PO: Chikhala, Tumsar, Distt. Bhandara.
AWARD
(Dated: 13th August, 2013)
In exercise of the powers conferred by clause (d) of
sub-section (1) and sub-section 2(A) of section 10 of
Industrial Disputes Act, 1947 (14 of 1947) ("the Act" in
short), the Central Government has referred the industrial
dispute between the employers, in relation to the
management of MOIL and their workman, Shri Hanslal
Warade, for adjudication, as per letter No. L-27012/1/
2008-IR (M) dated 22.09.2008, with the following
schedule:—
"Whether the action of the management of the
Manganese Ore (I) Ltd., Chikla Mine in dismissing
Shri Hanslal Sumratlal Warade, an Ex-workman of
Chikla Mine from service is legal and justified? If
not, to what relief is the workman is entitled?''
2. On receipt of the reference, parties were noticed to
file their respective statement of claim and written statement,
in response to which, the applicants, who are the legal
heirs of the deceased workman, Shri Hanslal Warade, (''the
applicants'' in short) filed the statement of claim and the
management of MOIL, ("party no. 1" in short) filed the
written statement.
The case of the applicants (the legal heirs of the
deceased workman, Hanslal Sumratlal Warade) is that
deceased workman was in the employment of party no. 1 at
Chikhla Mines as a driver w.e.f. 12.04.1975 and a charge
sheet dated 11.05.2006 was issued by the party no. 1
levelling various false charges against him and the
deceased workman submitted his reply to the said charge
sheet, but party no. 1 was not satisfied with his reply and
initiated the departmental proceedings against him and after
conducting the departmental enquiry, the deceased
workman was dismissed from services w.e.f. 14.01.2007 and
the deceased workman raised the Industrial dispute before
the Asstt. Labour Commissioner (C), Nagpur and due to
failure of the conciliation, failure report was submitted to
the Central Government and the Central Government in its
turn referred the dispute to the Tribunal for adjudication,
but before filing of the statement of claim by the deceased
workman challenging his illegal dismissal from service
dated 14.01.2007, he died on 19.01.2009 and as such, the
statement of claim has been filed by them, as the wife and
son of the deceased workman. The further case of the
applicants is that charge sheet dated 11.05.2006 was
submitted against the deceased workman for commission
of the alleged theft of steel plate carried by him in the
explosive van and when the security guard at the gate
asked him about the said steel plate, he replied to have
been carrying the same to the workshop for welding and
he did not bring back the steel plate and handed over the
explosive van to one Shri Omprakash Devisingh, Driver at
about 12 PM and such action of the deceased workman
amounted to misconduct under clauses 29 (b) (3) (9) (10) of
the certified standing order of party No. 1 and the deceased
workman in his reply, denied the charges levelled against
him and infact, the deceased workman did not take any
steel plate to outside the plant to the workshop and
according to the procedure, in case of taking anything
outside of the plant, it is necessary to prepare a gate pass
¹Hkkx II—[k.M 3(ii)º
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6145
for the same and without the gate pass, nothing can be
taken out of the plant and the security guard uses to check
the vehicles and without gate pass, he does not allow
anything to be taken out of the security gate and it is clear
that no gate pass was prepared for the steel plate and as
such, it could not have been taken out from the main gate.
It is further pleaded by the applicants that, not admitting,
but assuming that the deceased workman might have taken
the steel plate, then at the first place, the Party No. 1 should
have lodged a report at the police station and secondly,
the steel plate should have been recovered from the
possession of the deceased workman, but neither any police
complaint was against the deceased workman not there
was recovery of the steel plate from his possession and
such facts clearly indicate that no steel plate was stolen by
the deceased workman and false charges were levelled
against him and therefore, the issuance of the charge sheet
against the workman was with malafide intention and to
implicate him for the false charge of theft and the deceased
workman in his reply had categorically mentioned that the
officers of Party No. 1 were compelling him to carry their
house hold articles in the explosive van and whenever, he
was objecting or denying to carry the materials, he was
being threatedned of termination of his services by the
said officers.
The further case of the applicants is that the
departmental enquiry was conducted by the enquiry officer
in a very strange manner and the copy of the enquiry
proceedings was not supplied to the workman during the
course of the enquiry and such fact was brought to the
notice of the diciplinary authority and non-supply of the
copy of the proeedings was in violation of the principles of
natural justice and the enquiry officer acted as a prosecutor
and he himself asked questions to the deceased workman
and deceased workman was not given proper opportunity
to defend his case and the enquiry officer without explaining
the procedure of the enquiry, conducted the enquiry as per
his whims and the enquiry officer was biased and his
findings were perverse and the enquiry officer held the
charges to have been proved without any justification and
basing on such perverse and baseless findings, the
workman was dismissed from services and as such, the
order of dismissal is liable to be set aside, the same being
illegal and contrary to the provisions of laws.
The further case of the applicants is that the charge
sheet was issued by the Manager of Chikla Mines under
his signature and the dismissal order was also singned by
him as the Disciplinary Authority and below the signature
of the Manager, the Deputy General Manager also signed
the dismissal order and in the dismissal order dated
14.01.2007, it was mentioned that the said authority will
decide the appeal preferred by the deceased workman and
the Party No. 1 in colorable exercise of power acted as
dictator to victimize the workman and the entire procedure
adopted by Party No. 1 was illegal and the dismissal order
was not served on the deceased workman and the
Sr. Personnel Manager, Shri Pagnis and the then C.M.O.,
Shri Kishanlal Mehrotra with hand in gloves put the false
signature of the deceased workman and submitted the same
before the ALC (C), Nagpur in conciliation proceeding and
the deceased workman had challenged the same and though
the deceased workman had preferred an appeal to the
appellate authority, in reply to the same, the appellate
authority raised new allegation of selling liquor by him in
the residential quarter allotted to him by the company,
which allegation was not included in the charge sheet and
the said fact clearly indicates that the Party No. 1 was bent
upon to dismiss the services of the deceased workman.
The applicant have prayed to answer the reference
in their favour and to give them monetary benefits from the
date of the illegal dismissal of the deceased workman till
his death and consequential benefits and to give
compassionate appointment to applicant No. 1.
3. The Party No. 1 in their written statement have
pleaded inter-alia that the service record of the deceased
workman was not clean and excellent and the workman had
been charge sheeted earlier, for the misconduct of theft of
diesel and punishment of suspension of four days with
loss of wages under the certified standing order of the
company had been imposed against him, after conducting
of departmental enquiry and the deceased workman on
29.04.2006 at about 2. P.M. took one old jaw plate from the
crushing plant in the explosive van, which he was driving,
with an intention of welding of the plate in the workshop,
without any instruction from any of the competent
authorities and the plate was taken by the workman to
outside of Chikla Mine instead of to the workshop and his
such action amounted to misconduct under the certified
standing order, so he was charge sheeted under clause 29
B (iii) (ix) (x) of the Standing Order on 11.05.2006 and as the
reply submitted by the deceased workman on 22.05.2006
was found to be unsatisfactory, it was decided by the
Disciplinary Authority, the Mines Manager, Chikla Mine
to conduct the departmental enquiry and the disciplinary
authority appointed Shri S.K. Biswas as the enquiry officer
on 15/06/2006, to conduct the departmental enquiry and
the enquiry officer conducted the enquiry as per the
procedure laid down in the certified standing order, by
offering proper opportunity of hearing to the deceased
workman and by following the principles of natural justice
and the deceased workman participated in the enquiry and
he denied the suggestion of the enquiry officer to take
assistance of any co-worker or office bearer of a registered
union, stating to conduct his own case himself and he
cross-examined the three witnesses produced by them and
the deceased workman did not produce any witness and
gave his statement only and after completion of the enquiry,
the enquiry officer submitted the enquiry report holding
the charges to have been proved against the deceased
workman and the disciplinary authority issued the second
6146
THE GAZETTE OF INDIA : OCTOBER 26, 2013/KARTIKA 4, 1935
[PART II—SEC. 3(ii)]
show cause notice alongwith the copy of the enquiry report
to the deceased workman, vide letter dated 24.12.2006, in
respect of the proposed punishment and the deceased
workman submitted his reply to the 2nd show cause notice
on 01.01.2007 and as the reply was found to be not
satisfactory, the disciplinary authority decided to impose
the punishment of dismissal from services and accordingly
vide order dated 14.01.2007, the workman was dismissed
from services with immediate effect. The further case of
Party No. 1 is that no gate pass is necessary for movement/
transportation of material within the mine area and such
gate pass is required only when any material is taken out
from the mines area and the deceased workman took the
plate from the crushing plant without any official instruction
from any authority and instead of taking the same to the
Mechanical workshop, he took the same outside the mines
area for the purpose of theft and the misconduct of theft
was proved against the deceased workman and the
allegations of threat given by officials to terminate the
services of the deceased workman are unfounded and after
thought and copy of the enquiry proceedings was handed
over to the workman and the same was duly acknowledged
by him and the workman did not produce any witness in
the enquiry even thought opportunity was given to him
for the same and the enquiry officer did not conduct the
enquiry as per his whims and in a biased manner and such
allegations are false and the Mines Manager, Chikla Mine
being the disciplinary authority under the certified standing
order had rightly issued the charge sheet and signed the
order of dismissal and the Agent and Deputy General
Manager, Group of the Mine is an appellate authority and
the allegations made in this regard are not true and the
dismissal order was duly served on the deceased workman
and the appeal preferred by him on 12.02.2007 against the
penalty of dismissal before the Agent and DGM, Group of
Mines came to be rejected by a reasoned order. The further
case of the Party No. 1 is that mere non-filing of the police
complaint does not lead to the conclusion that the deceased
workman was falsely implicated and the statment of claim
does not point out any material to show perversity of
findings and the appellate authority in the order did not
raise any new allegation of selling liquor as pointed out,
but it was in respect of the past conduct of the deceased
workman, which was taken account of by the appellate
authority and there is no illegality in dismissing the
workman from services, as the charges of theft levelled
against him were proved in the departmental enquiry and
they lost faith in the deceased workman and the applicants
are not entitled to any relief.
4. In the rejoinder, the facts mentioned in the
statement of claim are reiterated.
5. It is necessary to mention here that as this is a
case of dismissal of the deceased workman from services
after holding of a departmental enquiry, the legality or
otherwise of the departmental enquiry was taken up for
consideration as a preliminary issue and by order dated
01.02.2013, the departmental enquiry conducted against
the deceased workman was held to be legal, proper and in
accordance with the principles of natural justice.
6. At the time of argument, it was submitted by the
learned advocate for the applicants that false charge of
theft of a steel plate had been levelled against the workman
and the evidence adduced in the departmental enquiry was
inconsistent, untrustworthy and discrepant and the same
was insufficient to hold the workman guilty of the charge
and as such, the findings of the Enquiry Officer were totally
perverse and the punishment of dismissal imposed against
the workman was highly disproportionate and illegal and
as such the workman was entitled to be reinstated in service
and as the workman died on 19.01.2009, the applicants,
who are his legal heirs are entitled for monetary benefits
with all consequential benefits till the date of death of the
workman.
7. Per contra, it was submitted by the learned advocate
for the Party No.1 that by order dated 01.02.2013, the
departmental enquiry held against the deceased workman
has already been held to be legal, proper and in accordance
with the principles of natural justice and for commission of
misconduct of theft of an old jaw plate from the CS plant
charge sheet under the certified standing order was
submitted against the workman and the report of the enquiry
officer was based on the evidence adduced in the enquiry
and was not based on any extraneous materials and as
such, the findings cannot be said to be perverse and the
disciplinary authority while imposing the punishment had
taken the past service records of the deceased workman
and the punishment imposed against the workman was
justified and the same was legal and proper and the same
cannot be said to be shockingly disproportionate to the
grave misconduct committed by the workman and the
reference is to be answered in favour of Party No. 1.
8. It is to be mentioned here that most of the
submissions made by the learned advocate for the workman
have already been considered at of deciding of the
preliminary issue of the validity of the departmental enquiry,
so there is no question of consideration of such
submissions again.
9. At this juncture, I think it apropos to mention the
principles settled by the Hon'ble Apex court in a string of
decisions regarding the jurisdiction and power of the
Tribunal in regard to interference with the findings and
punishment in a departmental enquiry.
It is well settled by the Hon'ble Apex Court that:-
"The jurisdiction of the Tribunal to interfere with the
disciplinary matters or punishment cannot be equated with
an appellate jurisdiction. The Tribunal cannot interfere with
the findings of the enquiry officer or competent authority
where they are not arbitrary or utterly perverse. The power
to impose penalty on a delinquent officer is conferred on
the competent authority either by an Act of legislature or
rules made under the proviso to Art. 309 of the Constitution.
If there has been an enquiry consistent with the rules and
¹Hkkx II—[k.M 3(ii)º
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6147
in accordance with principles of natural justice what
punishment would meet the ends of justice is a matter
exclusively within the jurisdiction of the competent
authority. If the penalty can lawfully be imposed and is
imposed on the proved misconduct, the Tribunal has no
power to substitute its own discretion for that of the
authority. The adequacy of penalty unless it is mala fide is
certainly not a matter for the Tribunal to concern itself
with. The Tribunal also cannot interfere with the penalty if
the conclusion of the enquiry officer or the competent
authority is based on evidence even if some of it is found
to be irrelevant or extraneous to the matter."
It is also settled by the Hon'ble Apex Court that:-
"A review of the above legal position would establish
that the disciplinary authority and on appeal, the appellate
authority, being fact finding authorities have exclusive
power to consider the evidence with a view to maintain
discipline. They are invested with the discretion to impose
appropriate punishment keeping in view the magnitude or
gravity of the misconduct. The High Court/Tribunal, while
exercising the power of judicial review, cannot normally
substitute its own conclusion on penalty and impose some
other penalty. If the punishment imposed by the disciplinary
authority or the appellate authority shocks the' conscience
of the High Court/Tribunal, it would appropriately mould
the relief, either directing the disciplinary/appellate
authority to reconsider the penalty imposed, or to shorten
the litigation, it may itself, in exceptional and rare cases,
impose appropriate punishment with cogent reasons in
support thereof."
It is also well settled by Hon'ble Apex Court that:-
In departmental proceedings, the disciplinary
authority is the sole judge of facts and in case an appeal is
presented to the appellate authority, the appellate authority
has also the power/and jurisdiction to re-appreciate the
evidence and come to its own conclusion, on facts, being
the sole fact-finding authorities. Once findings of fact,
based on appreciation of evidence are recorded, the High
Court in writ jurisdiction may not normally interfere with
those factual findings unless it finds that the recorded
findings were based either on no evidence or that the
findings were wholly perverse and/or legally untenable.
The adequacy or inadequacy of the evidence is not
permitted to be canvassed before the High Court. Since
the High Court does not sit as an appellate authority over
the factual findings recorded during departmental
proceedings, while exercising the power of judicial review,
the High Court cannot, normally speaking, substitute its
own conclusion, with regard to the guilt of the delinquent,
for that of the departmental authorities. Even insofar as
imposition of penalty or punishment is concerned, unless
the punishment or penalty imposed by the disciplinary or
the departmental appellate authority, is either impermissible
or such that it shocks the conscience of the High Court, it
should not normally substitute its own opinion and impose
some other punishment or penalty. Both the learned Single
Judge and the Division Bench of the High Court, it appears,
ignored the well-settled principle that even though judicial
review of administrative action must remain flexible and its
dimension not closed, yet the Court, in exercise of the
power of judicial review, is not concerned with the
correctness of the findings of fact on the basis of which
the orders are made so long as those findings are
reasonably supported by evidence and have been arrived
at through proceedings which cannot be faulted with for
procedural illegalities or irregularities which vitiate the
process by which the decision was arrived at. Judicial
review, it must be remembered, is directed not against the
decision, but is confined to the examination of the decision-
making process."
10. Keeping in view the above settled principles, now,
the case in hand is to be considered.
After perusing the materials on record including the
papers of the departmental enquiry and taking into
consideration the submissions made by the learned
advocates for the parties, it is found that the enquiry officer
has arrived at the conclusions by analyzing the evidence
adduced in the departmental proceeding systematically and
so also in a rational manner. The findings of the enquiry
officer are based on the materials on record of the enquiry
proceedings and not on any extraneous consideration. It
is also found that this is not a case of no evidence or that
the findings of the enquiry officer are based on no evidence.
The findings of the enquiry officer are not as such, which
could not have been reached by a prudent man on the
materials available on record. Hence, the findings of the
enquiry officer cannot be said to be perverse.
11. So far the proportionality of the punishment is
concerned; in this case, grave misconduct of theft has
been proved against the workman in a properly conducted
departmental enquiry. As the punishment imposed against
the workman is not shockingly disproportionate to the
grave misconducts proved against him in a properly
conducted departmental enquiry, there is no scope to
interfere with the same. Hence, it is ordered:-
ORDER
The action of the management of the Manganese
Ore (I) Ltd., Chikla Mine in dismissing Shri Hanslal Sumratlal
Warade, an Ex- workman of Chikla Mine from service is
legal and justified. As the workman was not entitled to any
relief, the applicants, who are his legal heirs are not entitled
to any relief.
J.P. CHAND, Presiding Officer
Printed by the Manager, Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.